Redmond v. City of McComb

Full title: REDMOND v. CITY OF McCOMB

Court: Supreme Court of Mississippi, In Banc

Date published: Nov 10, 1941

4 So. 2d 494 (Miss. 1941)

4 So. 2d 494

Opinion

No. 34659.

November 10, 1941.

CRIMINAL LAW.

Where defendant was convicted in court of police justice for unlawful possession of intoxicating liquors and was convicted on appeal to county court, and he filed proper bond for appeal to circuit court but failed to give timely notice to court reporter to transcribe notes of evidence, the omission, regardless of its effect upon right of defendant to avail of the reporter's transcript which was sent up with record to the circuit court, did not justify the summary dismissal of the appeal since defendant's right to appeal upon the record and to stand thereon was not affected by the omission.

APPEAL from the circuit court of Pike county, HON. J.F. GUYNES, Judge.

F.D. Hewitt, for McComb, for appellant.

The error complained of and assigned is that the defendant was deprived of his constitutional rights to be heard, and it is only necessary that we cite the case of Schwartz v. McKay, 184 Miss. 422, 185 So. 200.

Appellee not represented in this court.

Argued orally by F.D. Hewitt, for appellant.

Alexander, J., delivered the opinion of the court.

Appellant was convicted in the court of the police justice of the City of McComb for the unlawful possession of intoxicating liquors. He appealed to the County Court and was again convicted. Thereupon he filed proper bond for appeal to the Circuit Court, but failed to give timely notice to the court reporter to transcribe the notes of the evidence. The transcript of the testimony was, however, sent up with the record to the Circuit Court, where, upon motion of the county prosecuting attorney, the appeal was dismissed "for failure of defendant to give notice to the court reporter within ten days after the trial of this cause."

Such omission regardless of its effect upon the right of appellant to avail of the reporter's transcript, did not justify the summary dismissal of his appeal. His right to appeal upon the record and to stand thereon was not thereby affected. Such, indeed, is the extent of the record in certiorari. We are not concerned with the extent to which his day in court may be diminished by the omission, but his right thereto must be recognized and protected. Schwartz v. McKay, 184 Miss. 422, 185 So. 200, 811. For the error in dismissing the appeal to the Circuit Court, the cause must be reversed and remanded.

Reversed and remanded.