Washington v. State, 46 So. 539

Washington v. State

46 So. 539 | Miss. | 1908

Calhoon, J.,

delivered the opinion of the court.

We think it was error to permit the mayor by his verbal testimony to amend the transcript of the record. This must be done by the book itself, or certified amended transcript from the book or paper as it is. The transcript should be a veritable copy of the record from the book, and the transcript cannot be amended in any way, so as to change it from the actual condition of the book.

It was error to allow the mayor, who tried the case in the court below, to testify as to what a state witness had testified before him on the original trial in corroboration of her testimony on the appeal trial. It will be noted that three witnesses testified that the sale of whiskey was not- made, and that there was only one witness for the state. Under this condition .of things, what the state witness testified formerly, in order to' corroborate her statement, was inadmissible.

The proceeding was begun by an affidavit, which appears to have been “in the police court, city of Greenwood.” It is made before the clerk of the police court by one Miller, who made oath that the appellant, “within the corporate limits of the said city of Greenwood, in the county and state aforesaid,” committed the offense, and concludes “against the peace and dignity of the state of Mississippi.” We find in the transcript a statement as follows: “Copy of the records of proceedings before W. S. Yardaman, mayor of the city of Greenwood and ex-officio justice of the peace of Leflore county, in said city, in the ease therein set forth, to-wit: The City of Greenwood v. Gertrude Washington." And the transcript proceeds to show when the warrant was issued, when returnable, etc., and then we have the sentence, which is that the defendant be fined in the sum of “$500 and imprisoned in the city jail for 90 days, and be committed until the fine and costs are paid.”

A motion was made to dismiss the cause because the transcript showed a conviction in the court of the justice of the peace for violation of an ordinance of the city of Greenwood, while *276the affidavit charged her with the violation of the statute of the state of Mississippi. This motion was renewed in another shape, because the record of appeal showed an affidavit in the mayor’s court charging a violation of the statutes of the state, while it also, showed that defendant was not convicted of the violation of a state statute, but a violation of a city ordinance. There was also a motion to discharge the defendant because of want of jurisdiction in the court below, and because there was no affidavit charging her with the violation of any ordinance prohibiting the sale of intoxicants. It is plain that the district attorney had gravé doubts of the ground he stood on, because, after the trial was ovér, after the state and defendant had rested, after the jury had retired, while the court was acting on instructions, he ashed the coiirt to amend the copy of proceedings certified to by the mayor, and the testimony of the mayor was introduced, in which, as before said, he was erroneously permitted to testify that the transcript which he had certified to was incorrect.

This record presents the fact, to which the attention of the court below was called, that there never had been any arraignment in that trial in the circuit court. On the apjoeal this was a trial de novo, and arraignment was necessary in the circuit court. That court might, at any time during the entire trial, it may be assumed, have had the formal arraignment made, when its attention was called to the fact that it had not been made. It is true that the want of arraignment would not be noticed in this court when the point was not made in the court below; but.we are not prepared to say that defendant was not entitled to it on demand, or that, if not made in the court below when the attention of the court was called to it, advantage of it could not be tahen of it here.

Under our statutes the mayor may act as police justice to dispose of prosecutions for violations of the city ordinances, which is the police court, and as mayor and ex-o-ffiew justice of the peace he may hold another court — that is, the regular court of *277the justice of the peace — to try prosecutions for violations of the state laws. These two courts are wholly distinct and separate ; the police court trying municipal charges, and the court of the justice of the peace state offenses. The record must show clearly what offense was charged and against what power, whether municipal or state, so that there may be a plea of former conviction or former acquittal, which would apply without any question.

By our Code 1906, § 3398, the police justice is required to keep a separate docket as justice of the peace, and it seems the statute was designed to prevent the intermixing of the two powers of the police justice and the justice of the peace. Here the affidavit was clearly an affidavit in the police court of the city of Greenwood, and it is. certified by the clerk of the city of Greenwood, “ex-officio clerk of police court” of said city. Unmistakably this affidavit was made in the police court before the police clerk, and it charged no offense that the police court could try, because it did not charge a violation of any municipal ordinance.

It appears, also, that the sentence was to confinement in the city jail. It is true that, if the trial was before the mayor as ex-officio justice of the peace, the mere nullity of the sentence by confining the prisoner in the wrong jail, and the mere excess of fine, would not materially change results, because, on the appeal trial, proper sentence could be rendered; but the fact of defendant’s sentence to imprisonment in the city jail shows the confusion in the two jurisdictions.

Our examination of this case satisfies us that the judgment should be reversed, and the prisoner should be discharged; and it is so ordered. • Reversed.