Opinion
No. 43079.
October 26, 1964.
1. Criminal law — courts — conflicting jurisdictions — mayor's court — justice of peace court.
Where record on appeal from Circuit Court conviction on amended affidavit originally filed in mayor's court charging possession of intoxicating liquor, for a second offense, was confusing, and reviewing court could not determine whether first charge or second or both were instituted in mayor's court or ex officio justice of peace court, conviction was required to be reversed without prejudice to the right of the State to file a new affidavit in justice court or proceed by indictment in Circuit Court, as the case might be, on the first offense charged. Secs. 2433, 2613, 3374-103, Code 1942.
Headnote as approved by Rodgers, J.
APPEAL from the Circuit Court of Monroe County; N.S. SWEAT, JR., J.
Johnny N. Tackett; Aberdeen, for appellant.
I. The Court committed fatal error in refusing the defendant's instruction No. 11 quoted as follows: "The Court instructs the jury for the defendant that before the defendant can be convicted of the crime of the second offense violation of possession of intoxicating liquor, as he is here charged, that the State must prove beyond all reasonable doubt that the defendant had in fact, been convicted prior to the offense charged here of the crime of possession of intoxicating liquor by the State of Mississippi, and a conviction in the mayor's court in the City of Aberdeen is not a prior conviction under the laws of the State of Mississippi, but that such conviction must be had in a prosecution by the State of Mississippi". Trivillion v. State, 195 Miss. 308, 15 So.2d 285.
II. The Court committed fatal error in failing to direct the jury to return a verdict in favor of the defendant C.R. Suggs in that the record introduced by the State of Mississippi in the within cause in an attempt to prove a prior conviction under the laws of the State of Mississippi on which the second offense violation was charged is shown by the record to be that of a prosecution by the City of Aberdeen, Mississippi, and not by the State of Mississippi and that no second offense violation may be predicated upon a conviction other than by the State of Mississippi. Trivillion v. State, supra.
III. The Court committed fatal error in failing to dismiss the within cause, on motion of the defendant herein, on grounds that the record is so confused that he is unable to tell from an inspection thereof whether the defendant was tried by the City of Aberdeen or the State of Mississippi. Washington v. State, 93 Miss. 277, 46 So. 539; Wright v. City of Belzoni, 188 Miss. 334, 194 So. 919.
IV. The Court committed fatal error in allowing the witness George W. Howell, Jr., to interpret the minutes of the judgment of conviction in the case of the City of Aberdeen v. C.R. Suggs on page 63 of the mayor's general court docket of Aberdeen, Mississippi over the objection of the defendant as to being a conviction in the ex-officio justice of the peace court in the face of minutes of the court. Clark v. State, 100 Miss. 751, 57 So. 209; Washington v. State, supra; McElroy, Mississippi Evidence, Sec. 68.
V. The Court erred in overruling the defendant's objection to the question directed to George W. Howell, as leading. Trivillion v. State, supra; McElroy, Mississippi Evidence, Sec. 155.
VI. The Court committed fatal error in admitting to the record the search warrant and affidavit, over the objection of the defendant, that the search warrant was made returnable to George W. Howell, Jr., Mayor of the City of Aberdeen, Mississippi in the mayor's court and said warrant was in fact returned before the ex-officio justice of the peace court of George W. Howell, Jr., Mayor of the City of Aberdeen. Curtis v. State, 247 Miss. 671, 157 So.2d 401, 158 So.2d 693; Faulkner v. State, 14 Miss. 101, 98 So. 345; Goffredo v. State, 145 Miss. 66, 111 So. 131; Walker v. State, 192 Miss. 409, 6 So.2d 127; Washington v. State, supra; Chap. 100, Laws 1854; Chap. 93, Laws 1892.
VII. The Court erred in overruling the defendant's objection to the question wherein the question was directed to Mayor Howell, "In what capacity would you be acting as the return officer on that warrant?" and the objection interposed that the said instrument speaks for itself as to whom it is returnable to and is not subject to interpretation by the witness.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. Cited and discussed the following authorities. Brown v. State, 222 Miss. 863, 77 So.2d 694; Curtis v. State, 247 Miss. 671, 157 So.2d 401, 158 So.2d 693; Frierson v. State, 250 Miss. 339, 165 So.2d 342; Jenkins v. State, 207 Miss. 281, 42 So.2d 198; Johnson v. State, 59 Miss. 543; Jones v. State, 244 Miss. 256, 142 So.2d 36; May v. Town of Carthage, 191 Miss. 97, 2 So.2d 801; Trivillion v. State, 195 Miss. 308, 15 So.2d 285; Welch v. Kroger Grocery Co., 180 Miss. 89, 177 So. 41; Woodsides v. State, 2 Howard (3 Miss.) 655, 1 Mor. St. Cases 95.
Appellant was convicted in the Circuit Court of Monroe County, Mississippi, upon an amended affidavit originally filed in the Mayor's Court of the City of Aberdeen, charging him with possession of intoxicating liquors in violation of § 2613, Miss. Code 1942, Rec., for a second offense. He was sentenced to pay a fine of $500 and serve a term of ninety days in the Monroe County Jail.
(Hn 1) Without detailing the many conflicting facts, inconsistencies and erroneous record entries in the first and second charges instituted in the mayor's court shown in this appeal, it is sufficient to say the record is confusing. We cannot determine whether the first charge or the second, or both, were instituted in the mayor's court or the ex-officio justice of the peace court. This case must therefore be reversed. See Washington v. State, 93 Miss. 270, 46 So. 539; Wright v. City of Belzoni, 188 Miss. 334, 194 So. 919.
The confusion of jurisdiction shown in this record, as in many similar records, grows out of the fact that the mayor did not keep two trial dockets as required by § 3374-103, Miss. Code 1942. Compare Murphy v. State, 164 Miss. 296, 144 So. 699.
The judgment of the circuit court sentencing appellant on the charge of having intoxicating liquors in his possession on a second offense is hereby reversed (Brown v. State, 222 Miss. 863, 77 So.2d 694) and remanded to the circuit court without prejudice to the right of the State to file a new affidavit in the justice of the peace court (Travis v. State, 230 Miss. 578, 93 So.2d 468) or proceed by indictment in the circuit court, as the case may be, upon a first offense charge. Faust v. State, 43 So.2d 379 (Miss.); § 2433, Miss. Code 1942, Rec.
Reversed and remanded.
Lee, C.J., and McElroy, Jones and Patterson, JJ., concur.