Brasham v. State , 140 Miss. 712 ( 1925 )

^* Headnotes 1. Criminal Law, 17 C.J., Section 3552 (Anno); 2. Criminal Law, 17 C.J., Section 3334. Hardy Brasham and W.F. Price appeal from a conviction on a charge of having intoxicating liquors in their possession. The prosecution of the case started in a justice of the peace court where appellants were convicted, from which they appealed to the circuit court, and there they were again convicted and sentenced to pay a fine of three hundred dollars and serve a jail sentence.

The main point urged for reversal is that the justice of the peace failed to certify his record to the circuit court; and, since the circuit court was without jurisdiction to try the case because the record was not certified to it from the justice of the peace court, the judgment must be reversed by this court.

It seems to be conceded by the attorney-general that the justice of the peace did fail to certify his record to the circuit court, but it is contended for the state that the certificate of the justice of the peace had been made, but that it was lost, and did not reach the circuit clerk, but that the circuit court proceeded to establish the lost certificate by oral proof, and did establish its existence in that manner, and therefore the circuit court had jurisdiction to try the case. It is also urged that the appellant should have raised this point in the lower court instead of waiting to present it here for the first time.

We must disagree with the attorney-general as to the establishment of the lost certificate in the lower court. The record shows that some proof was introduced in this direction, but we find no adjudication of any kind showing that the lost certificate had been established. We doubt very much whether there was sufficient evidence upon which to predicate a finding of the establishment of the lost certificate. At all events, there is no judgment showing this fact, and therefore we must assume that the certification of the record of the justice of the peace was not established; consequently, the circuit court had no jurisdiction to try the case. It seems that no request was made in the circuit court for a dismissal of the appeal with writ ofprocedendo when the appellants failed to perfect the record of appeal from the justice of the peace court to the circuit court.

The question of jurisdiction may be raised at any time, as has often been decided by this court. Rodgers v. City ofHattiesburg, 99 Miss. 639, 55 So. 481; Ruff v. Montgomery,83 Miss. 184, 35 So. 465; Ball v. Sledge, 82 Miss. 747, 35 So. 214; Gardner v. R.R. Co. 78 Miss. 640, 29 So. 469;McPhail v. Blaun, 95 Miss. 53, 48 So. 725; McPhail v.Blaun (Miss.), 47 So. 666; City of Greenwood v. Weaver,96 Miss. 604, 50 So. 981; Allen v. State, 98 Miss. 192, 53 So. 498; Xydias v. Pellman, 121 Miss. 400, 83 So. 620; Cawthon v. State, 100 Miss. 834, 57 So. 224.

The judgment of the lower court is reversed and the case remanded for further proceedings in the circuit court.

Reversed and remanded.