Ellis v. State, 69 So. 819

Ellis v. State

69 So. 819 | Miss. | 1915

Cook, J.,

delivered the opinion of the court.

Appellant was convicted in the court of a justice of the peace upon a misdemeanor- charge, and appealed to the circuit court. When the case was called in the circuit court, we get from the record, the district attorney informed the court that the record from the justice’s court had become lost or destroyed, and this fact seems to have been *9admitted by counsel for appellant. Tbe district attorney then asked that a copy of tbe record be substituted for tbe original, and that tbe trial proceed upon the alleged copy. The alleged copy seems to have been prepared under the directions of the district attorney. Appellant protested against being put upon trial upon the copy, saying that he did not know whether the alleged copy offered was a true copy or not. The trial judge, after stating that “the ease was tried in the lower court, and the defendant was acquainted with the charge, and ought to be sufficiently familiar with it to know whether the papers substituted here are correct,” overruled appellant’s objection, and this trial proceeded, resulting in a verdict of guilty and a judgment of the court imposing a fine of fifty dollars upon defendant; therefore thjs appeal. The trial court seems to have proceeded upon the theory that it was up to the defendant to point out wherein the alleged substituted record was incorrect, and, failing to do this, it would be presumed that the record was correct.

The state did not conform to the procedure required by any of the statutes of this state, and, as we see it, appellant was tried in the circuit court without a record from the justice of the peace court. A lost record may be supplied, but this must be accomplished in the manner pointed out by the statute. The state did not ask that defendant’s appeal be dismissed, but elected to try him de novo, and, having elected this course, it was the duty of the district attorney to conform to the statute, if he desired to substitute the lost record.

Reversed and remanded