Summary
stating that a misdemeanor case brought to the circuit court by appeal is there triable de novo, and the person charged has the same right to a trial by an appearance and defense through the agency or his attorney
Summary of this case from Ferrell v. StateOpinion
No. 32953.
February 7, 1938.
1. CRIMINAL LAW.
Where defendant, convicted of selling liquor, appealed from the justice's court, and, having been advised by his attorney that he need not remain continually in the courtroom, especially during argument on his demurrer, was absent when the case was called, the circuit court improperly dismissed the appeal with writ of procedendo, and refused to set aside the order when defendant appeared personally later in the day.
2. CRIMINAL LAW.
A misdemeanor case appealed to the circuit court is triable de novo, and defendant has the same right to a trial in his absence, by an appearance and defense through his attorney, as he would have in a misdemeanor case originating in the circuit court by indictment.
APPEAL from the circuit court of Jefferson Davis county. HON. HARVEY McGEHEE, Judge.
G.L. Martin, of Prentiss, for appellant.
The court will note that appellant's attorneys, when the case was about to be dismissed, announced ready for trial; that they had a demurrer on which they asked for a hearing and that they were willing to go to trial in the absence of the defendant. The court took the position that it had no authority to hear anything in the case in the absence of the defendant. We think the court was in error.
Morris v. City of Tupelo, 129 Miss. 887, 93 So. 453.
Section 1276, Code of 1930, provides that "in criminal cases the presence of the prisoner may be waived and the trial progress, at the discretion of the court, in his absence, if he be in custody and consenting thereto." The defendant was consenting through his attorneys and where the defendant waives a matter, it cannot be said that the court would abuse any power of discretion in acquiescing in the waiver.
Ford v. State, 155 So. 220; Cannon v. State, 134 Miss. 805, 100 So. 8.
It is the policy of our court to give a defendant a trial on the merits. We most respectfully submit that the temporary absence of accused in no way delayed the court in the trial of cases. Section 24 of the Constitution seeks to give every man his day in court and we submit that in the trial of cases involving negroes, who know but little of court procedure, some little indulgence should be granted, if needed, and we submit none was needed here, for this negro appeared in plenty time to go right on with his trial and the demurrer and motion to quash could have been heard meanwhile.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The facts of this case show that when the case was called the defendant was absent, but his attorney was there present insisting on his demurrer to the affidavit and insisting on the trial in the absence of the defendant.
In Morris v. City of Tupelo, 129 Miss. 887, 93 So. 453, this court held the trial court in error for refusing to set aside an order entered under substantially the same circumstances as are present here. So that, if this decision has not been overruled or modified, it appears to the writer that it should govern the disposition of this appeal.
Appellant was convicted in a justice of the peace court of the unlawful sale of intoxicating liquor, and took an appeal to the circuit court. On the day set for the calling of the criminal docket in the circuit court, including appeals in criminal cases, this case was called, but appellant was not in the courtroom. His attorney was present, however, and announced that he was ready to take up the case on his demurrer to the affidavit and also, if necessary, to proceed with the trial on the facts in appellant's absence. It appears that appellant was in the courthouse town, but that his attorney had improvidently advised him that he need not remain at all times in the courtroom, and that, when the demurrer was taken up, he would send for appellant, thus giving him time to come into the courtroom while the demurrer was being argued.
It appears from the statement of the court, made a part of the record, that the court "took the position that unless the defendant is here to prosecute his appeal the court is not required to hear the case at all." The court thereupon dismissed the appeal with writ of procedendo, and later in the day, when the appellant personally appeared, the court refused to set aside the order.
The honorable Attorney-General confesses that, unless the case, Morris v. Tupelo, 129 Miss. 887, 93 So. 433, is to be overruled, the result here must be a reversal. That case is in point, and we see no reason to overrule it. A misdemeanor case brought to the circuit court by appeal is there triable de novo, and the person charged has the same right to a trial by an appearance and defense through the agency of his attorney, and in the absence of the defendant personally, as he would have in a misdemeanor case originating in the circuit court by indictment.
Reversed and remanded.