Opinion
11-13-1919
GALLIAO v. STATE.
David J. Reinhardt, Atty. Gen., for the State. Philip L. Garrett, of Wilmington, for defendant.
Peter Galliao was informed against in the municipal court for the city of Wilmington, on a charge of assault and battery, and adjudged guilty, and he brings appeal. On motions for second continuance and to dismiss appeal. Defendant discharged from custody.
BOYCE and RICE, JJ., sitting.
David J. Reinhardt, Atty. Gen., for the State.
Philip L. Garrett, of Wilmington, for defendant.
Peter Galliao was adjudged guilty of assault and battery in the municipal court for the city of Wilmington on August 5, 1919, and was sentenced to imprisonment for three months and to pay a fine of $100. He, being unable to give a supersedeas bond, was committed, but subsequently took an appeal to the Court of General Sessions. Information on the appeal was filed at the September term following, and, because of the absence of the prosecuting witness, the case was continued to this, the November term, and the prosecuting witness still being absent and out of the jurisdiction, the state moved for a further continuance of the case. Counsel for the convict moved to dismiss the appeal for failure to prosecute after the second term, which motion was opposed by the state.
PER CURIAM. Article 4, § 30, of the Constitution of 1897 provides that there shallbe an appeal to the Court of General Sessions in all cases in which the sentence shall be imprisonment exceeding one month, or a fine exceeding $100. Under this provision, the convict, though now in custody under sentence of the municipal court and unable to give a supersedeas bond, is entitled to an appeal to this court. The inability of the state to try the case at this, the second term since the appeal was taken, because of the absence of the prosecuting witness, does not warrant a further continuance of the case. The convict is at this term entitled to have the appeal proceeded with or to be discharged from custody, pending the appeal. The state may have the case retired for the present. The convict will be discharged under the sentence imposed by the municipal court in this case, but not from any other sentence for which he may be in custody.