135 S.W.2d 848 | Ark. | 1940
Upon the affidavit of the deputy prosecuting attorney that appellant had committed the offense of operating a car for hire without first having paid the "for hire" license fee on said car, in that he received passengers in said car and charged and received 20 cents each for transporting them from Higgins Lane *730 to Helena, a warrant was issued out of the municipal court of Helena for appellant's arrest upon said charge. He was arrested, arraigned in said court, and, before entering any plea to the charge, requested the court for a trial by a jury of twelve. His request was refused. He was tried by the court without a jury, found guilty and fined $142 with costs. He thereafter filed in the circuit court his petition for a writ of mandamus, setting up the matters aforesaid against appellee, "commanding and directing that all proceedings had in his court, the assessment of the fine and costs against this defendant be set aside and held for naught and that he be directed to reopen said case and impanel a jury of 12 to hear and determine said cause."
The circuit court sustained a demurrer interposed by appellee, denied the writ and dismissed the petition, and this appeal followed.
It was held in Brandon, Ex parte,
Therefore, assuming that appellant was entitled to a jury trial in the municipal court, he being charged with the violation of a state statute and not a city ordinance, although committed in the city of Helena, the refusal of said court to impanel a jury was but an error which could not be corrected by mandamus. As we said in Jackson v. Collins,
So, here, appellant is seeking to correct by mandamus an erroneous decision already made, assuming it to be such, which, as we have already shown, cannot be done. It is said by appellant that an appeal could not correct the mischief already done — a denial of his right of trial by a jury in the first instance. Even so, his only remedy afforded by law, as we see it, is by appeal to the circuit court, where he will be accorded a trial de novo before a jury.
Affirmed. *732