Opinion
No. 29370.
June 8, 1931.
CRIMINAL LAW. Appeal in case originating in justice court and appealed to county and circuit courts will be dismissed unless appeal involves constitutional question ( Code 1930, section 705).
Under section 705 of the Code of 1930, an appeal does not lie from circuit court to the Supreme Court where the cause originated in the justice of the peace court, was appealed therefrom to the county court, and from thence to the circuit court, unless a constitutional question was raised in the circuit court. An appeal, although allowed, not reciting the existence of the constitutional question as provided in the statute, and where none arises on the face of the record, will be dismissed.
APPEAL from circuit court of Washington county; HON. S.F. DAVIS, Judge.
Farish Bell, of Greenville, for appellant.
There is nothing in the record to show that the appellant had the whiskey in her possession or under her control.
We submit that where a wife is living with her husband in a house where liquor is found, the presumption is that the liquor is in the possession of the husband and not the wife.
Wiley v. State, 151 Miss. 897, 119 So. 825.
Appellant was tried in the justice of the peace court on November 5, 1929, as shown by the record and not November 5, 1930.
When this prosecution was begun the appellant had the right, under the statute, to appeal to the county court, then to the circuit court and then to the Supreme Court. This was a substantial right which she possessed when she was first charged with the offense. Section 705, of the Code of 1930, of course, did not go into effect until November, 1930.
We suggest therefore, that this statute, under which the appeal was dismissed, is as to this appellant ex post facto.
W.A. Shipman, Assistant Attorney-General, for the state.
In such case, where the defense is that the defendant had no knowledge of the presence of the liquors found in his shop, this raises a question of fact for the jury, the presumption being in such case that he knew of its presence.
Jackson v. Gordon, 119 Miss. 325, 80 So. 785; Holley v. State, 144 Miss. 726, 111 So. 139; Jones v. State, 152 Miss. 216, 119 So. 174; Armstrong v. State, 152 Miss. 622, 120 So. 174.
Matilda Williams was convicted of the unlawful possession of intoxicating liquor. The prosecution was instituted before a justice of the peace of the county, and, from a conviction in that court, appeal was had to the county court, where on trial de novo she was also convicted. From the county court appeal was had to the circuit court, where the judgment of the county court was affirmed.
The circuit judge, in affirming the judgment of the county court, granted an appeal to this court, but there was no recital in the judgment that any constitutional question was involved, and none is assigned for error either in the circuit court or here.
The prosecution was begun on November 5th, and the judgment of the circuit court was rendered December 9, 1930.
Section 705, Code of 1930, among other things, provides that: "And from the final judgment of the county court in a case appealed to it under this section, a further appeal may be taken to the circuit court on the same terms and in the same manner as other appeals from the county court to the circuit court are taken: Provided that where the judgment or record of the justice of the peace, municipal or police court is not properly certified, or is not certified at all, that question must be raised in the county court in the absence of which the defect shall be deemed as waived and by such waiver cured and may not thereafer be raised for the first time in the circuit court on the appeal thereto; and provided further that there shall be no appeal from the circuit court to the Supreme Court of any case civil or criminal which originated in a justice of the peace, municipal or police court and was thence appealed to the county court and thence to the circuit court unless in the determination of the case a constitutional question be necessarily involved, and then only upon the allowance of the appeal by the circuit judge or by a judge of the Supreme Court."
The only question provided for determination here on appeal is the sufficiency of the evidence. There was no constitutional question raised in the court below, and, as stated, there was none recited to exist in the order allowing the appeal; consequently the appeal cannot be maintained, and is hereby dismissed.
Appeal dismissed.