111 Ark. 51 | Ark. | 1914
(after stating the facts). 1. Under our statute and the decisions of this court, upon appeal from a justice court to the circuit court, the trial in the cir'cuit court is de novo. Kirby’s Dig., § 2580; Touhy v. Rector, 26 Ark. 315; Hall v. Doyle, 35 Ark. 445; Thomas v. State, 41 Ark. 408; Lour v. State, 94 Ark. 178; Batesville v. Ball, 100 Ark. 499. But the law does not require the prosecutor to enter into bond in the circuit court, and the issue can not be raised in the circuit court for the first time. The law only requires the bond to be made “in courts of justices of the peace and in other inferior' courts.” If the defendant fails to move for this bond in the inferior court, where the charge originated, he waives his right to require it.
A failure to give bond under the statute is a matter to be pleaded in abatement or in bar of the right to prosecute, and it should be made in limine in the court where the prosecution is initiated, and, under the statute, where the. defendant fails to make a motion in the inferior court, he can not insist upon it elsewhere. See Mann v. State, 37 Ark. 407; Lour v. State, supra.
2. Section 2580, of Kirby’s Digest, provides that upon appeal, the case shall be tried anew as if no judgment had been rendered. The record in the case recites that “appellant, desiring to stand on his motion to dismiss, did not plead further herein.” This was tantamount to a plea of guilty on the merits, and authorized the court to impose a fine upon appellant as upon such plea. The affirmance of the judgment on the charge was but an indication of what the circuit court considered a proper fine to be imposed for the offense charged. Appellant’s plea was equivalent to what is known in criminal procedure as the plea of nolle contendere; that is, “the defendant declaring in court that he will not contend with the prosecuting power.”
Mr. Bishop says: “The difference between it and guilty appears simply to be that while the latter is confession binding the defendant in other proceedings, the former has no effect beyond the particular case.” See 2 Bishop’s New Criminal Procedure, § 802, and note 7.
As the appellant was present in person and declared affirmatively that he did not wish to plead further after his motion was overruled, we are of the opinion that there was no reversible error in the court’s entering the judgment against him as upon a plea of guilty on the merits of the case. The record, in effect, shows that the appellant admitted his guilt of the crime charged by standing on his motion and declaring that he would not contend further with the prosecuting power.
Finding no reversible error, the judgment is affirmed.