Opinion
No. 45044.
December 2, 1968.
Appeal from Circuit Court, Hinds County, Russel D. Moore, III, J.
Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellant.
W.E. Gore, Jr., Jackson, for appellee.
The record in this cause discloses that the appellee was convicted of driving while intoxicated on November 4, 1962, in the Justice of the Peace Court of Robert Brassell of Harrisville, Mississippi. On August 26, 1966, the Commissioner of Public Safety sent a notice to the appellee which stated that the appellee's driver's license was revoked, charging that appellee had been convicted of driving a motor vehicle "while under the influence of intoxicating liquor or a narcotic drug."
On November 14, 1966, appellee filed a Petition for Writ of Certiorari in the Circuit Court of the First Judicial District of Hinds County, Mississippi. Certiorari was issued to T.B. Birdsong, Commissioner of Public Safety, on November 14, 1966, and he was directed to certify and send up to the next regular term of court all of the facts and proceedings in the cause.
Mr. Joe E. Ware, Chief Drivers' License Improvement Officer, who is in charge of the records involved in this cause, in compliance with the order of Circuit Judge Russel Moore certified that four instruments constituted the entire record upon which the Department of Public Safety acted revoking the appellee's license in compliance with the provisions of Mississippi Code 1942 Annotated section 8106 (1956). The anemic records contain a ticket dated November 4, 1962, signed by Patrolman Jones. The ticket ordered the appellee to appear before Judge Brassell to answer for violating the Laws of Mississippi, to-wit: DWI. In boxes on the bottom of the ticket was marked "fine $100," "cost $15.00," "guilty," and "date 9/5/62." There also appears the signature "Robert Brassell, J.P.," and his seal.
The trial judge found that there was no proper abstract of the judgment and further that the Uniform Arrest Ticket bearing the initials DWI failed to charge a crime and ordered that the appellee's driving privileges be reinstated.
Appellant assigns the action of the trial court in granting the writ of certiorari as error. Based on Mississippi Code 1942 Annotated section 1206 (1956), Mississippi Code 1942 Annotated section 8114 (Supp. 1966), Mississippi Code 1942 Annotated section 8105 (1956), and based on the decision of this Court in the case of Mississippi State Department of Public Safety v. Berry, Miss., 217 So.2d 11, not yet reported, we are of the opinion that the extraordinary writ of certiorari was improperly granted.
Although a writ of certiorari will not lie in a case such as the one at bar, the statutes afford proper means of appeal; therefore, the judgment of the circuit court is reversed and the writ of certiorari is vacated.
Reversed and rendered.
ETHRIDGE, C.J., and RODGERS, JONES and SMITH, JJ., concur.