75 So. 2d 741 | Miss. | 1954
The appellant was tried and convicted in the Justice of the Peace Court of District Number Two of Clay County on an affidavit charging him with unlawfully operating a motor vehicle on West Main Street in West Point, Mississippi, while under the influence of intoxicating liquor. He was fined $100.00 and costs, and appealed to the circuit court, where he was again tried and convicted and sentenced to pay a fine of $100.00 and costs. He prosecutes this appeal from the judgment in the circuit court.
The appellant contends that the evidence is insufficient to establish his guilt beyond every reasonable doubt. The state’s proof, which was accepted by the jury, clearly established the guilt of the appellant. The sheriff testified that the appellant was too drunk to drive and that he tried to prevail upon him not to drive in his condition, and that appellant became abusive and profane in his language, and drove off in his car in disregard of the sheriff’s warning, and was later arrested by the sheriff while driving his car on one of the public streets of the City of West Point. The sheriff testified that the appellant staggered and that there was a bottle of whiskey in his car. Another witness for the state testified that he saw the appellant when he got out of his car and that he was “cussing and staggering.”
The appellant and his wife were the only witnesses in his behalf. Both admitted that they had each had two small drinks, taken several hours apart during the afternoon and evening, but they denied that appellant was drunk or under the influence of intoxicating liquor. Appellant’s wife said that she did not hear her husband curse the sheriff, and the appellant himself testified that he would not say whether he cursed the sheriff or not, but that he was very mad because of the sheriff’s treatment of him.
It can be readily seen that the evidence on the question of the appellant’s guilt or innocence was conflicting and created an issue of fact for the determination of the jury. There was ample evidence to sustain the jury’s verdict and we are, therefore, not warranted in disturbing it.
The appellant contends that the trial court erred in refusing his request for an instruction on the presumption of innocence. The requested instruction contained verbiage announcing to the jury that the presumption of innocence with which the defendant was clothed should be kept before the jury during the trial and should be taken by him into the jury room when they retired to consider their verdict, and that it stood as a witness for the defendant proclaiming his innocence. We deem it unnecessary to set out the instruction in full. It is sufficient to say that the instruction has been condemned by this Court in at least three cases, namely: Carr v. State, 192 Miss. 152, 4 So. 2d 887; Lott v. State, 204 Miss. 610, 37 So. 2d 782; and Bone v.
The appellant further complains of the trial court’s action in refusing the following requested instruction: “The court charges the jury that no juror in this case should permit himself to be to any extent influenced against the defendant because of or on account of the indictment in this cause for the reason that such indictment is of itself a mere accusation or charge against the defendant, and is not any evidence whatsoever or in any respect of the guilt of the defendant.”
The instruction is objectionable in the first place because it is inaccurate in that it advises the jury erroneously that the defendant is being tried on an indictment, when in truth and in fact, he is being tried on an affidavit. This Court, however, expressly held in the case of Howze v. State, 43 So. 2d 191, that the refusal of a like instruction would not constitute reversible error unless it appeared that some miscarriage of justice had resulted. We can perceive no miscarriage of justice which resulted to the appellant because of the refusal of this instruction, and we are of the opinion that its refusal in this case is not alone sufficient to warrant a reversal of the judgment of conviction.
The appellant also complains that the court erred in refusing his request for the following instruction: “The court charges the jury that if there is any one single material fact proven in this case which is inconsistent with the guilt of the defendant, then this is of itself sufficient to raise a reasonable doubt thereof, and it will be the sworn duty of the jury to find the defendant not guilty.” This instruction was clearly erroneous and the court was correct in refusing it. It would be highly improper to single out any single material fact and authorize the jury to base their verdict upon this one fact. It is the duty of the jury to con
The appellant also contends that the trial court erred in granting to the state the following instruction: “The court instructs the jury for the state that if you believe from the evidence beyond a reasonable doubt that the defendant, Tom Warner, operated a motor vehicle on West Main Street in the City of West Point, Mississippi, District Two, Clay County, while he, the defendant, was under the influence of intoxicating liquor, it is your sworn duty to find the defendant guilty as charged in the affidavit, and this is true even though you should believe from the evidence that he did not have a traffic accident at the time, and that he did not drive his automobile in a reckless manner.”
The appellant assails this instruction, first, because it contains the language “as charged in the affidavit.” It will be noted, however, that the instruction on it’s face sets out the essential elements and material substance of the charge contained in the affidavit, and in Ball v. State, 203 Miss. 521, 36 So. 2d 159, we said of a similar instruction that it did not constitute reversible error, and that while the language complained of should have been omitted, it was mere surplusage. The appellant further criticizes the instruction because it concludes with the language “even though you should believe from the evidence that he did not have a traffic accident at the time and that he did not drive his automobile in a reckless manner.” The appellant argues that in order to establish the guilt of the defendant on the charge preferred against him it should appear that he was intoxicated to the extent that he was incapable of driving his automobile with safety, and that, therefore, the complained of language in the instruction should have been omitted therefrom, and that the court erred in granting the instruction as drawn. Appellant confuses prosecutions for the offense of driving an automobile while under the influence of liquor and prose-
It is next contended by the appellant that the trial court had no jurisdiction to render its judgment because (1) no certified transcript of the proceedings of the justice court had been filed in the circuit court, and (2) the transcript of proceedings, when finally filed during the course of the trial, showed no judgment of conviction, but on the contrary, showed that the appellant had been bound over to the circuit court under a bond of $250.00, and (3) the original papers showing the judgment, affidavit, appeal bond, etc., were not attached as a part of the certified transcript. The record discloses the following: The appellant was tried in the justice of the peace court on September 18, 1953. On the same day, there was filed with the circuit clerk a copy of -a judgment signed by Curt Bennett, Justice of the Peace, reciting that the cause came on for hearing and that the defendant, through his attorney, B. II. Loving, • pleaded .nolo contendere, and that the defendant
Appellant first argues that the court was without jurisdiction to proceed with the trial when it developed at the outset that there was no certified transcript of the proceedings in the justice of the peace court on file. Appellant relies upon the line of cases decided by this Court prior to the enactment of the amendment contained in Section 3403 of the Mississippi Code of 1930, now appearing as Section 1987 of the Mississippi Code of 1942. This amendment reads as follows: “And no judgment in any case originating in a justice court or any municipal court and appealed to the circuit court shall be reversed because it may appear in the Supreme Court transcript that the judgment or record of the said justice or municipal court was not properly certified, or was not certified at all, or was missing in whole or in part, unless the record further shows that objection on that account was made in the circuit court, in the absence of which objection in the circuit court, there shall be a conclusive presumption that the defects in this clause mentioned would not exist in the circuit court proceedings; provided, however, that the foregoing-clause shall not apply to cases wherein a record in the Supreme Court of the transcript from the justice or municipal court is necessary to a fair understanding of the proceedings in the circuit court.”
It is clear that a record in the Supreme Court of the transcript from the justice of the peace court was not necessary to a fair understanding of the proceedings in the circuit court. The eases decided prior to the enactment of the quoted amendment, and relied upon by the appellant, have no application to the case before us.
It is further contended by the appellant that the transcript of proceedings, when finally filed during the course of the trial, showed no judgment of conviction, but, on the contrary, showed that appellant had been bound over to the circuit court under a bond of $250.00. It is true that in the transcript of the proceedings certified to by the justice of the peace and filed on December 16, 1953, it contained an entry purporting to be from the docket of the justice of the peace and reading as follows: “This cause came up for hearing and the
After a careful review of the entire case, we are of the opinion that the evidence is amply sufficient to support the judgment of conviction, and that the record is free from reversible error. The judgment of conviction will therefore be affirmed.
Affirmed.