Opinion
No. 43221.
November 16, 1964.
1. Criminal law — dismissal — adjournment of court — motion to reinstate came too late.
Where Circuit Court of Lafayette County, which came under statute providing that court terms in Lafayette County be on second Monday of March, six days, and on second Monday of September, six days, convened on Monday, March 9, 1964, and on March 10, 1964 appeal by defendant from judgment of Justice of the Peace Court convicting him of carrying concealed weapon was dismissed because defendant did not appear, and on March 11, 1964 Circuit Court was adjourned because all matters of business were concluded, Circuit Court did not have jurisdiction of motion by defendant on March 12, 1964 to reinstate appeal. Secs. 1394, 1397, 2085, Code 1942.
Headnote as approved by McElroy, J.
APPEAL from the Circuit Court of Lafayette County; WALTER M. O'BARR, J.
Jack H. Young, Jackson; Jack Greenberg, Derrick A. Bell, New York City, for appellant.
I. The abrupt closing of the circuit term after a single day violated: (1) the statutory provisions regarding the duration of the term, and (2) appellant's right to the due process of law and the equal protection of the law. Ivey v. State, 154 Miss. 60, 119 So. 507; Secs. 1394, 1397, Code 1942; 14 Am. Jur., Courts, 25.
II. The Court, in refusing to reinstate the appeal: (1) abused its discretion, and (2) denied appellant the equal protection of the laws and due process of law. Griffin v. Illinois, 351 U.S. 12; Meredith v. Fair, 298 F.2d 696, 305 F.2d 343; Moore v. Grillis, 205 Miss. 865, 39 So.2d 505; National Assn. for Advancement of Colored People v. Button, 371 U.S. 415; Planters Lumber Co. v. Sibley, 130 Miss. 26, 93 So. 440; United States ex rel. Goldsby v. Harpole, 263 F.2d 71; United States v. City of Jackson, 318 F.2d 1; United States v. Mississippi, 229 F. Supp. 925; Secs. 3841.3, 4065.3, Code 1942; Chap. 464, Laws 1952.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. Since the motion to reinstate the appeal and the order thereon were both filed after the expiration of the term of Court, neither the Circuit Court nor the Supreme Court has jurisdiction, and the appeal here should be dismissed. Thornhill v. State, 240 Miss. 131, 126 So.2d 527; Sec. 1394, Code 1942.
The appellant, Cleve McDowell, assigns as error that the court below erred (1) in closing the six-day circuit term after one day, and (2) in denying appellant's timely motion to reinstate his appeal. We are of the opinion the circuit judge was not in error, and the appeal to this Court should be dismissed.
Appellant was arrested on September 23, 1963 on the campus of the University of Mississippi, Lafayette County, and charged with violating Mississippi Code Annotated section 2085 (1956), carrying a concealed weapon. On September 28, 1963 he was convicted in the Justice of Peace Court, First District of Lafayette County, and fined $100 and costs. It was appealed to the Circuit Court of Lafayette County, to be tried at the next term. The bond so states.
The terms of the Third Circuit Court District of Mississippi, which includes Lafayette County, are designated under Mississippi Code Annotated section 1397 (1956) and amendments. It is in part: "The court terms in the third circuit court district shall be as follows: . . . Lafayette: On the second Monday of March, six days, on the second Monday of September, six days; . . . ."
The record reveals the following: "In the Circuit Court of Lafayette County, March Term, 1964 BE IT REMEMBERED that on the Second Monday of March 1964 the Regular Term of the Circuit Court of Lafayette County, Mississippi, convened in the county courthouse in the City of Oxford, on Monday, March 9, 1964, at nine o'clock a.m., and . . . the Court was duly opened according to law and the following proceedings were had, to-wit: . . . ."
The record reveals that sixty-two names were drawn from the jury box under provisions of the Code, the jury for the first week of the regular March 1964 term of the circuit court. The record reveals that they had a grand jury, and the grand jury returned into open court eight true bills of indictment. The record further reveals the copies of the affidavit against the appellant, the warrant for his arrest, the order of his conviction before the justice of the peace, and his bond of appeal, all appealed according to law.
The bond of appeal showed he was convicted on September 28, 1963 for carrying a concealed weapon, under Mississippi Code Annotated section 2085 (1956), that he was found guilty and sentenced to pay $100. This conviction and sentence were appealed to the next term of the circuit court, there to remain from day to day and term to term until discharged by law from the charge.
In dismissing the appeal the record shows the following order of the circuit court:
IN THE CIRCUIT COURT OF LAFAYETTE COUNTY, MISSISSIPPI MARCH TERM, 1964
THE STATE OF MISSISSIPPI VS. No. 9013 CLEVE MCDOWELL,
This case was called in open court on the charge of carrying a concealed weapon and the State announced ready for trial. The defendant being called thrice in open court answered not to prosecute his appeal.
It is, therefore, the judgment of the court that defendant's appeal should be dismissed with a Writ of Procedendo to the lower court from whence it came and the Justice of the Peace who tried the case is ordered to issue a capias profinem for the defendant and collect the fine and all costs.
ORDERED AND ADJUDGED THIS THE 10th day of March, 1964.
/s/ Walter M. O'Barr CIRCUIT JUDGE
MINUTE BOOK K AT PAGE 280
It is to be remembered that this was the second day of the March 1964 term.
The record reveals that after three full days of work the court was adjourned, and the following order was issued:
It appearing unto the satisfaction of the court that all matters of business to come before the Regular March, 1964 Term of the Circuit Court of Lafayette County, Mississippi, now having concluded, the court is ordered adjourned until court in course.
/s/ Walter M. O'Barr CIRCUIT JUDGE
The brief and the record show the court was adjourned on the third day, March 11, 1964.
On the next day, March 12, 1964, the appellant filed a motion to reinstate the appeal, giving as his reason "that the attorney for the defendant, Cleve McDowell, had gotten the date of the Court Terms confused, thinking that the Circuit Court of Lafayette County met in April instead of in March, . . . ." On the same day, March 12, the circuit judge entered an order dismissing the motion to reinstate the appeal.
It is to be noted that the motion to reinstate the appeal and the order overruling it were filed and entered after the adjournment of the March term of the circuit court.
Section 1394, Mississippi Code Annotated (1956) requires a circuit court to continue for the full term set out in the several statutes fixing terms of court if the business shall require.
The learned circuit judge, in his order of adjournment, stated: "It appearing unto the satisfaction of the court that all matters of business to come before the regular March 1964 term of the Circuit Court of Lafayette County, Mississippi now having been concluded, the court is ordered adjourned until court in course."
We are of the opinion that the regular term of the circuit court was held in Lafayette County according to law.
The appellant's case had been fully and finally disposed of at the term of court concluded on March 11.
(Hn 1) We are of the opinion that since the motion to reinstate the appeal and the order thereon were both filed after expiration of the term of court, neither the circuit court nor the Supreme Court has jurisdiction.
In Pittman v. State, 147 Miss. 593, 600, 113 So. 348, 351 (1927), the court said: "When the term of court was finally adjourned, the appellant's right to file a motion for a new trial ended, and any action of the trial judge in reference to such a motion, which was filed after the adjournment of the term, was of no effect, and is not properly a part of this record." Accord, National Cas. Co. v. Calhoun, 219 Miss. 9, 67 So.2d 908 (1953); Dobbs v. State, 200 Miss. 595, 27 So.2d 551 (1946); cf. Thornhill v. State, 240 Miss. 131, 126 So.2d 527 (1961). See also Murphy v. State, 223 Miss. 290; 78 So.2d 342 (1955).
Since the motion to reinstate the appeal and the court's order overruling the same were filed and entered after adjournment of the regular term of court, the trial judge was without jurisdiction. Therefore, this court is also without jurisdiction, and the appeal is dismissed.
Appealed dismissed.
Lee, C.J., and Rodgers, Jones and Brady, JJ., concur.