Ethridge, J.,
delivered the opinion of the court.
The appellant Avas convicted in the city court for the unlawful sale of intoxicating liquors, and sentenced to pay a'fine of one hundred dollars and serve thirty days in prison, and appealed to the circuit court. When the case Avas called in the circuit court the appellant was not president in person, but his attorney announced present for him, and stated that lie Avas practically sure that the defendant had had some car trouble or other accident on his way to Tupelo, and was practically sure that he would be in court in a short time. The court thereupon announced that a forfeiture Avould be taken on his bond, and his appeals dismissed. The attorney thereupon announced that he was ready for trial in each of the cases, and that the presence of the defendant would be Avaived. The court declined to grant a tidal in the said cases, but took judgment nisi against the said bonds in each of the said cases. Just a few minutes after the last case was called, forfeiture taken, and appeal dismissed, the defendant appeared in the court and announced ready for trial, and a motion Aims made to set aside the order of dismissal in each of the cases and to alloAV the defendant to go to trial. The motion was accompanied by affidavit: That the defendant was in attendance in the circuit court on the day previous to the dismissal, and that he had returned home in his automobile for the night, and that he lived about twenty miles *892on a good road, and that the time for making the trip was usually from forty to fifty minutes. That he made the trip by automobile in company with his wife and two others, and that he left home about six o’clock in the morning for the purpose of attending court. That they had some trouble in getting the car started, but finally left home about 6:30 a. m.; that after traveling a short distance they had a puncture, and were delayed about thirty minutes. That after getting the tire trouble fixed they immediately started, and on reaching the slough bridge over town creek, some ten or twelve miles from Tupelo, they found a large road truck broken down on the bridge across the slough. It was necessary to wait until the truck was fixed before they could start on their journey. That upon inquiry as to the time it ivould take to get the truck out of the way they were informed that it would be only a few minutes, but that it took about one hour, which delay caused them to be late at court.
The testimony of the several parties was taken, and thé® evidence sustained the allegations of the affidavit as to the circumstances causing the delay. It appears from the testimony that the court convened about eight o’clock, and that some time was consumed in sounding the docket. There was some difference as to the exact time at which the defendant arrived' in court, but the testimony shows that no other case had been taken up for trial. The court declined to reinstate the cases, and in his opinion, overruling the motion to reopen the case, stated he was of the opinion that, giving credit for the necessary delays testified to, he could have still reached the courthouse in time; that he was constrained to believe that there was something else hindering the defendant besides the things stated; also that the defendant could have come on the early morning train from Nettleton, where he iived, to the courthouse, and reached court in time. From the judgment overruling the motion to set aside, this appeal is prosecuted, and the refusal assigned as error.
*893It will be noted from the statement that when the case was called counsel for the defendant entered an appearance and offered to try the case upon the merits, and stated that he was sure there ivas some excuse for the delay. The trial judge has certain discretion as to whether he will dismiss a case or proceed to trial in the absence of the defendant, but this discretion is a judicial discretion, and must have a reasonable basis. On appeals from inferior criminal courts to the circuit court the cause is tried de novo, and the burden is upon the state to produce evidence to make out the offense. Under the law a party has a right to appear in person or by attorney in criminal cases, and unless there is some reason why the personal presence of the defendant is necessary, such as questions of identification and others that might occur, there would be no necessity for a defendant to be in the court until after conviction, where he had an attorney, as the court could not use the defendant as a witness .against himself. It better comports with the spirit of the law to have cases tried upon their merits, unless there is a substantial reason for some other course. In the cases of Bush v. State (Miss.), 6 So. 647; Henderson v. State (Miss.), 8 So. 649; Thomas v. State, 68 Miss. 91" court="Miss." date_filed="1890-10-15" href="https://app.midpage.ai/document/thomas-v-state-7986938?utm_source=webapp" opinion_id="7986938">68 Miss. 91, 8 So. 647; Henning v. Greenville, 69 Miss. 214" court="Miss." date_filed="1891-10-15" href="https://app.midpage.ai/document/henning-v-city-of-greenville-7987107?utm_source=webapp" opinion_id="7987107">69 Miss. 214, 12 So. 559; and Durden v. State, 102 Miss. 570" court="Miss." date_filed="1912-10-15" href="https://app.midpage.ai/document/durden-v-state-7991272?utm_source=webapp" opinion_id="7991272">102 Miss. 570, 59 So. 844—there was no appearance by attorney for the defendant nor was there any testimony shown by the report of the cases as to why the defendant was not present, which makes those cases differ materially from the present case. There is nothing in the record to show that the personal presence of the defendant was necessary for the purpose of a trial in the present case. The testimony in the record Ave think shows a reasonable excuse for not being in court promptly Avhen the case was called. A circuit court should make due alloAvance for unforeseen or unavoidable delays and defaults. It is true the defendant could remain in the town Avhere the court Avas being held, but under the circumstances shown in this record it was not unreasonable for the defendant to go home and return *894from there the following morning. Under ordinary circumstances he would have reached court in ample time, but by reason of unforeseen accidents he was detained. And in view of all the facts in evidence we think it was error for the court to refuse to set aside the dismissal and try the case on its merits. Metropolitan Cas. & Ins. Co. v. Cato, 113 Miss. 312, 74 So. 119.
Reversed and remanded.