Opinion
No. 38328.
January 21, 1952.
1. Criminal law — venue — judicial notice.
The Court judicially knows that Pittsboro and Bruce are in Calhoun County, and when a witness has testified in Pittsboro that the crime charged occurred "between here and Bruce" this is sufficient on the issue of venue, although no witness testified specifically that the offense occurred in Calhoun County or in Mississippi.
2. Courts — jurisdiction — appeal — certificate of justice of the peace.
Where the certificate of the justice of the peace to his transcript on appeal to the circuit shows that accused was convicted of a misdemeanor, and the certificate is entirely regular, jurisdiction prima facie is thereby conferred on the circuit court.
3. Courts — justices of the peace, judgments, impeachment of.
A judgment of conviction in a justice of the peace court, entered of record by the justice of the peace, may not be contradicted or impeached by him on his oral testimony that no such judgment had been given; nor may witnesses be permitted to present their hearsay testimony that the justice of the peace had so told them.
4. Appeal — justices of the peace — transcript — oral testimony.
An alleged defect in the transcript of the record on appeal from a justice of the peace court, or the omission of essential parts thereof, cannot be supplied by oral testimony at the trial in the circuit court.
5. Appeal — trial anew — jurisdiction — waiver of mere irregularities in justice of the peace trial.
Where the transcript from the justice of the peace court is sufficient to confer jurisdiction on the circuit court on appeal, a trial anew in the circuit court waives mere irregularities in the justice of the peace trial.
Headnotes as approved by Roberds, J.
APPEAL from the circuit court of Calhoun County; T.H. McELROY, Judge.
E.L. Lamar, for appellant.
I. The State did not prove venue on the trial had in the circuit court on appeal from the justice of the peace court. Dorsey v. State, 141 Miss. 600, 106 So. 827.
II. The circuit court was without jurisdiction to try case on appeal because record of justice of the peace was not certified to in accordance with statute, and judgment of circuit court void. Jeffries v. State, 111 So. 576.
III. The court erred in refusing defendant the right to offer evidence that the judgment of the justice of the peace court was a complete fraud.
Without a trial or a plea by the defendant in the justice of the peace court where the charge was filed the circuit court could have not acquired jurisdiction of the case. If the alleged judgment of the justice of the peace written on a paper was a complete fraud, the defendant had a right to show such to be a fact by oral proof. Without a valid judgment of the justice of the peace court, the circuit court could not have had jurisdiction, and it was not shown whether any sort of judgment was ever entered on the docket of the justice.
IV. The court erred in overruling motion of defendant to exclude and direct a verdict of not guilty for defendant.
The State had absolutely failed to prove venue and the defendant was entitled to a directed verdict of not guilty. In the case before the Court, as in the case of Dorsey v. State, 141 Miss. 600, 106 So. 827, "None of the witnesses who testified in the case testified that the offense occurred in the State of Mississippi". Geo. H. Ethridge, Assistant Attorney General, for appellee.
It appears to be the contention of the appellant that the judgment of the court was void because no actual trial took place in the justice of the peace court and that he was deprived of the right to a trial in that court; that because of this denial he could not be tried in the circuit court.
Under Sec. 1202 Code 1942 appeals in criminal cases from the justice court and other inferior courts are tried de novo. I submit that with a trial de novo, the record showing the affidavit, a plea of not guilty, and a trial in the justice court duly certified, it is not open to inquiry in the circuit court or here as to whether there was an actual trial or not, because being a trial de novo the whole case was tried in the circuit court as though the judgment of the justice of the peace no longer existed except it was suspended during the appeal. If the justice of the peace has jurisdiction of the subject matter in criminal prosecutions, the defendant by pleading not guilty and going to trial waives the question as to the jurisdiction of his person. Holley v. State, 74 Miss. 874, 21 So. 923; Crum v. Brock, 136 Miss. 858, 101 So. 704; Thigpen v. State, 206 Miss. 87, 39 So. 768; Ball v. State, 202 Miss. 405, 32 So.2d 195; Hitt v. State, 149 Miss. 718, 115 So. 879; Arnold v. State, 149 Miss. 738, 115 So. 885; Foote v. State, 115 So. 886; Kirk Jones v. State, 115 So. 886.
Tillman was convicted of driving a motor vehicle upon a public highway of this state while under the influence of intoxicating liquor.
He says the State failed to prove the venue of the crime. It is true no witness specifically said the crime occurred in Mississippi. Holloway v. State, 199 Miss. 356, 24 So.2d 857. Is there enough to show the crime occurred in this State? The affidavit before the justice of the peace charged that the crime occurred on public Highway No. 9 in District No. 1, Calhoun County, Mississippi. The judgment of the justice of the peace found defendant "guilty as charged." C.T. Williams, state patrolman, said the crime occurred between "here and Bruce." The record shows, and we judicially know, the trial was being had in Pittsboro, Mississippi, and Williams was in Pittsboro when he was testifying in the case. We also judicially know that the municipalities of Pittsboro and Bruce are both in Calhoun County, Mississippi. Williams said further the crime occurred in the justice of the peace district No. 1, on public Highway No. 9. Again, witness said that he met the pick-up in which accused was traveling "out here on the hill."
Patrolman Davis, who was with Williams when they arrested the defendant, said he saw defendant "on highway 9 north of here — I told him he was under arrest and brought him to the jail here at Pittsboro," and turned him over to jailor Winkler. He also said they arrested Tillman between Pittsboro and Bruce.
Tillman said he was arrested between Pittsboro and Bruce. He first saw the patrolmen in Calhoun City; then he drove to Pittsboro; then to Bruce, "and he come behind me and stopped me." We judicially know that all three municipalities, Calhoun City, Pittsboro, and Bruce, are in Calhoun County, Mississippi.
(Hn 1) We think these circumstances sufficiently prove the crime occurred in Mississippi.
When the case was called for trial, but after the jury had been impaneled, defendant moved the court to dismiss the case for lack of jurisdiction, because he hoped to show by R.C. Murphree, the justice of the peace who found defendant guilty in the justice of the peace court, and expected to prove by himself and his attorney, that the judgment of conviction, contained in the transcript of the justice of the peace, was not correct in this: that the judgment recited the defendant appeared in open court October 9, 1950, entered a plea of not guilty, was given a trial, evidence was heard, and defendant found guilty; that movant proposed to prove by the said three witnesses that defendant appeared in the justice of the peace court September 4, 1950, and that his case was continued for two weeks to enable him to procure counsel; and that on the date set defendant and his counsel appeared in said court and were informed by Davis, patrolman, that there would be no trial since defendant had already plead guilty; that counsel asked Murphree, justice of the peace, for a copy of, or permission to see, the judgment and was informed by Murphree that there was no judgment; whereupon Davis agreed to give defendant a trial October 9; that defendant and counsel appeared but were informed by Davis there would be no further trial, defendant having theretofore plead guilty. It is then said in the motion the circuit court had no jurisdiction because the judgment of the justice of the peace was not correct. The circuit judge refused to grant the motion. The judgment of the justice of the peace recites the defendant appeared, plead not guilty, announced ready for trial, "and the court after hearing all evidence and duly considering same," was of the opinion defendant was guilty and then so found, imposing a fine of $100 and costs.
The action of the trial court was not error for these reasons:
(Hn 2) The certificate of the justice of the peace to his transcript, which showed the judgment of conviction, was perfectly regular. Prima facie this conferred jurisdiction upon the circuit court. Sections 1198, 1199, and 1201, Miss. Code 1942; Stewart v. State, 179 Miss. 31, 174 So. 579.
(Hn 3) The effort here was to contradict the judgment by oral proof. Murphree, the justice of the peace, could not impeach his record, assuming he would have so orally testified. Town of Purvis v. Rees, 99 Miss. 636, 55 So. 481. (Hn 4) The motion states that defendant and his counsel, if permitted to testify, could only have testified that Murphree told them no judgment had been entered, which would have been hearsay and incompetent. These proposed witnesses never saw the docket. They could not know from their personal knowledge whether a judgment had been entered or not. In addition, while an incomplete record may be corrected by certiorari, "an alleged defect in the transcript of the record, or omission of essential parts thereof, cannot be supplied by oral testimony at the trial in the circuit court." Anthony v. Bassett, 172 Miss. 206, 159 So. 854.
(Hn 5) In addition to the foregoing, the case was tried anew in the circuit court. Sections 1201 and 1202, Code of 1942. If the circuit court had jurisdiction, which it did here, trial anew in that court waived mere irregularities in the justice of the peace trial. Holley v. State, 74 Miss. 878, 21 So. 923; Crum v. Brock, 136 Miss. 858, 101 So. 704.
Appellant does not contend he did not have a fair trial in the circuit court.
Affirmed.
Alexander, Hall, Holmes, and Arrington, JJ., concur.