Wilson v. State , 113 Miss. 748 ( 1917 )

HoldeN, J.,

delivered the opinion of the court.

The appellant was convicted of the unlawful sale of liquor in Holmes county, and appeals here from the judgment of the circuit court sentencing him to fine and imprisonment.

It appears from the record that the appellant was charged with selling liquor on April 10, 1916, by affidavit in a justice of the peace court, and was tried and convicted in that court, from which conviction he appealed to the circuit court where he was again convicted by a jury in that court, and appeals from this conviction under the affidavit dated April 10, 1916. The record also shows that an affidavit dated April 8, 1916, was filed in the same justice of the peace court where a trial and conviction was had for selling liquor, and the appellant appealed from the justice court to the circuit court. Therefore it will be seen that both of these appeals from the justice court to .the circuit court were pending at the same time in the circuit court. When the cases were called for trial the district attorney, with the consent of the court, elected to try the appellant upon the affidavit dated April 10th, and proceeded to trial thereon. He offered evidence for the' state showing sales of liquor covering a period of two years prior to April 10, 1916. As soon as this evidence was offered and submitted by the state, the appellant, by his attorney, then and there moved the court for leave to file a p]ea setting up the contention that no inquiry could be made concerning any sales of liquor by the appellant prior to April 2, 1916, for the reason that the appellant had been tried and convicted in the justice of the peace court on the affidavit dated April 8, 1916, and that at this justice trial and conviction the- state had offered evidence showing several sales of liquor during the two years immediately prior to April 2, 1916, and that therefore under the statute permitting proof of sales for two years prior to the date of the affidavit no inquiry could again lie made as to any sales during that particular time under the affidavit of April 10th, upon which the appellant was now being tried. The court overruled the motion, and denied the appellant the right to file such .a plea. The appellant again renewed the motion at the close of the testimony for the state, which was again overruled by the court. When all of the testimony had been submitted to the jury the appellant was convicted of selling liquor within the two years back- of April 10, 1916, the date of the affidavit upon which he was tried.

The appellant makes two contentions here for a reversal, which deserve consideration and discussion: First, whether or not the court erred in permitting the testimony, under the April 10th affidavit, as to sales of liquor prior to April 2, 1916, which sales had already been testified to under a different affidavit of April 8th at a different time, and upon which a conviction had been had, hut appealed from to the circuit court. Second, whether or not the mayor and ew officio justice of the peace of district No. 5 of Holmes county, who was also mayor of Tchula, had jurisdiction to try this case.

As to the first proposition, it appears to us that after the two trials and convictions in the justice of the peace court upon the two affidavits, dated April 8th and April 10th, respectively, an appeal to the circuit court was taken in both cases, and when the two cases .were pending for trial in the circuit court, they were to be tried de novo, in the same manner as if they had never been tried hv a court before, and they should have been treated, for all purposes, as if the two cases had been first filed and started in the circuit court. It is true that there had been a conviction upon both of the affidavits in the justice court, and judgment was there entered, but when the appeal was prosecuted by the appellant to the circuit court, the conviction and judgment in the justice of the peace court was then pid there “stayed” and vacated, and could in no way at any time affect the appellant, unless he, by his own negligence, failed to prosecute his appeal in the circuit court, and by failing to prosecute his appeal it would be dismissed and the conviction and judgment of the justice of the peace court would be reinstated and restored; but this could only happen through the negligence of the appellant or at his instance or by his'own conduct, for which he would be responsible, and about which he could have no just complaint. Therefore, when the two cases pending in the circuit court were called for trial, if the appellant’s contentions were correct and he were permitted to plead that no evidence of sales prior to April 2, 1916, could be introduced by the state because the testimony as to the sales during this particular time had already been introduced in the justice court on the trial of the affidavit dated April 8th, and upon which evidence there was a conviction — if this were a good plea, and the district attorney then proceeded to try the charge under the affidavit dated April 8th, and offered testimony showing sales from April 8th, back two years, then the appellant may have made the same complaint and objected to this testimony under the April 8th affidavit, because when he was tried in the justice court under the affidavit dated April 10th the evidence of the sales for two years prior to April 10, 1916, was introduced and upon which there was a conviction, and therefore no further inquiry under the statute could be made as to those sales within that time in the trial of the April 8th affidavit. It will be observed that if the appellant could successfully invoke such a rule as this, then the sate would be practically shut off from prosecuting the appellant under either one of the affidavits in the circuit court. But we do not think that any such contention can be upheld upon any reasonable or legal ground.

When the two cases were called in the circuit court the district attorney had the right to elect which one he would try first; and, having elected to try the defendant on the affidavit dated April 10, 1916, he had a right to proceed under that affidavit and introduce testimony of any or all sales of liquor by the appellant for two years immediately preceding the date of this affidavit. After the state had submitted the testimony of sales covering the two years back of April 10, 1916, the appellant would have received his “immunity bath” covering a space of two years back of April 10, 1916. That being true, he would have no trouble in pleading this “certificate of immunity” for these two years and securing his discharge, when the affidavit dated April 8 was called for trial. For, of course under the April 8th affidavit no testimony could be again introduced by the state showing- any sales by this appellant for a period of two years prior to April 10, 1916. In short, a conviction or acquittal under the April 10th affidavit here could undoubtedly be pleaded in bar of the prosecution under the affidavit of April 8th for sales two years back of that date. Therefore we do not .hesitate to say that the action of the lower court in permitting the district attorney to proceed with the trial of the affidavit dated April 10th, and refusing to permit the appellant to plead a former inquiry as to sales two years back, and a conviction in a justice of the peace court, from which he had appealed, was eminently correct and proper.

Our statute (section 87), which grants appeals from the justice court to the circuit court is a remarkable statute. Such appeals are not reviewed by the circuit court, but the case appealed is tried entirely anew, in the same manner as if the circuit court had original jurisdiction of the cause. The judgment, when appealed from,' is no more a final judgment, because it is “stayed,” and, in effect, is vacated, and can never be reinstated or restored, unless the appeal is dismissed with a writ of procedendo back to the' justice court. But when the appeal reaches the circuit court in regular form, and is there pending for trial, for all intents and purposes, there is no former judgment in existence in that case, and the case is there to be tried anew as if for the first time. Whenever the aggrieved party who appeals to the circuit court fails or refuses to prosecute his appeal, he must suffer the consequences of a restored judgment in the justice court, which in some instances might work a hardship, but the blame for such would be upon the party causing it.

As to the second question, of whether or not the mayor of the town of Tchula, who was also a qualified ex officio justice of the peace, had jurisdiction to try the appellant on the affidavit, we think it is settled in this state that the acts of a de facto officer cannot be questioned by a person convicted of crime; but if the officer be holding two inconsistent offices at the same time, or be holding one office wrongfully, the remedy is to proceed by quo warranto and oust him from one or the other, or both. The appellant has no right to complain of the acts of this de facto officer. Section 3473, Code 1906; Pringle v. State, 108 Miss. 802, 67 So. 455; Altman & Co. v. Wall, 111 Miss. 198, 71 So. 318; Powers v. State, 83 Miss. 702, 36 So. 6.

The judgment of the lower court is affirmed.

Affirmed.