Raines v. State , 148 Miss. 70 ( 1927 )

^* Corpus Juris-Cyc. References: Criminal Law, 16CJ, p. 344, n. 89; 17CJ, p. 371, n. 49, 51. The appellants were convicted in a justice of the peace court on a charge of possessing intoxicating liquors. They appealed to the circuit court, where they were again tried and convicted, and sentenced to pay a fine of five hundred dollars and serve ninety days in jail. From this conviction and sentence, they prosecuted this appeal.

The appellants seek a reversal of this cause on two grounds: First, that the evidence is insufficient to sustain a verdict of guilty; and, second, that the transcript of the record of the proceedings in the justice of the peace court and the certificate thereto are insufficient to confer on the circuit court jurisdiction of the cause.

Without here setting forth the testimony on behalf of the state, it will be sufficient to say that we have carefully examined the testimony and are of the opinion that it fully warrants the verdict returned by the jury.

The record now before us shows the affidavit on which the conviction is based, the warrant for appellants' arrest, with the sheriff's return thereon, the bond for their appearance in the justice court, the judgment of the justice court, and the bond for appeal to the circuit court, to which it attached a certificate of the justice of peace before whom the cause was tried, which omitting the formal parts, reads as follows:

"I, J.G. Gresham, a duly qualified justice of the peace in and for the Second district of said county, do hereby certify that the foregoing and annexed file of papers in above-styled cause contains the original papers on file with me, together with a true and correct copy of the judgment therein, costs, appeal bonds, affidavits, warrants, etc., all the case and papers pertaining in State, Plaintiff, v. Bob and Lee Raines,Defendants."

Section 83, Code 1906 (section 63, Hemingway's Code 1927), provides that, on appeal from a justice court to the circuit court, the justice of the peace shall at once make up a transcript of the record and promptly transmit the same to the clerk of the circuit court; while section 84, Code 1906 (section 64, Hemingway's Code 1927), provides a form for the certificate which may be used by the justice of the peace in certifying to this transcript. In the case at bar, we think the transcript of record and certificate thereto substantially comply with the requirements of these sections and were sufficient to confer jurisdiction of the cause on the circuit court.

The sentence of five hundred dollars and ninety days in jail was manifestly imposed under section 1, chapter 210, Laws of 1922. In the case of Holmes v. State, 146 Miss. 351,111 So. 860, this section was held to be unconstitutional, and, consequently, the punishment should have been imposed under section 17, chapter 189, Laws of 1918, which provides that, on conviction of this offense, the defendant shall be punished by a fine of not less than one hundred dollars and not more than five hundred dollars, or by imprisonment in the county jail not more than thirty days, or by both said fine and imprisonment.

Therefore, in so far as it imposes sentence on the verdict, the judgment of the court below will be reversed, and the cause remanded for a new sentence, but in all other respects it will be affirmed.

Affirmed in part, and reversed in part.