Summary
In Vincent v. State, 200 Miss. 423, 27 So.2d 556 (1946), copies of docket entries of conviction were held to be sufficient, where they were certified by a justice of the peace.
Summary of this case from Smith v. StateOpinion
No. 36211.
October 14, 1946. Suggestion of Error Overruled November 25, 1946.
1. CRIMINAL LAW.
A previous conviction in a justice court for illegal possession of intoxicating liquors was sufficiently shown by a copy of justice's docket entries covering the prior conviction, certified by the justice under the statute relating to certification of copies of public records in custody of public officers (Code 1942, secs. 1725, 2613).
2. CRIMINAL LAW.
In prosecution for a second unlawful possession of intoxicating liquor, the issue as to the first conviction was not whether defendant was propertly convicted but whether as an affirmative matter he was finally convicted (Code 1942, secs. 1198, 1199, 1725, 2613).
APPEAL from the circuit court of Humphreys county, HON. T.H. CAMPBELL, Special Judge.
R. Leon Bass, of Belzoni, for appellant.
It is necessary for the State to prove that the alleged offense was committed within the jurisdiction of the justice of the peace who originally tried the cause.
Elzey v. State, 110 Miss. 502, 70 So. 579; Crosby v. State, 136 Miss. 305, 101 So. 437.
Tougaloo is not an incorporated town, and if it were it could not judicially know that it was in the first justice of the peace district, because the districts of the justice of the peace courts are not fixed by statute, but are fixed by orders entered upon the minutes of the board of supervisors, of which judicial notice is not taken.
Slaton v. State, 134 Miss. 419, 98 So. 838.
Failure to prove venue is jurisdictional and can be raised in this Court.
Slaton v. State, supra.
At the trial, the State failed to prove the alleged sale took place in justice district No. 3 of said county, but attempted to prove venue by showing that the sale occurred in a town by the name of Harriston, in Jefferson County. Proof alone that the sale took place in a town is not sufficient.
Elzey v. State, supra; O'Neal v. State, 140 Miss. 182, 105 So. 496.
The districts of a county are determined by order of the board of supervisors of the county, and by such order may be and sometimes are changed. There is no public act establishing the boundaries of a supervisor's district, from which justices of the peace are elected. The court cannot take judicial notice of the supervisor's district in which a town or city is situated.
Elzey v. State, supra.
The justice of the peace, or mayor, or police court from whose judgment convicting a criminal offense an appeal shall be taken, shall at once transmit to the clerk of the circuit court the bond taken by him and a certified copy of his record of the case, with all the original papers in the case, as in appeals in civil cases.
Code of 1942, Sec. 1205.
A certificate, under his hand and official seal, by the officer to whom the legal custody of a record or paper belongs, that he has made diligent search in his office for the record or paper, and that it cannot be found therein, shall be admissible in evidence, and have the same effect as if the officer personally testified to the fact stated in such certificate.
Code of 1942, Sec. 1727.
If a justice of the peace has no jurisdiction, the circuit court acquires none upon appeal.
Ivy v. State, 141 Miss. 877, 106 So. 111.
The affidavit is a prerequisite to prosecution for misdemeanor.
Code of 1930, Sec. 2098; Code of 1942, Sec. 1832.
The affidavit is the foundation of the jurisdiction of of the justice of the peace.
Coulter v. State, 75 Miss. 356, 22 So. 872; 22 C.J.S. 457, Sec. 303.
And the court has no jurisdiction without it.
Bigham v. State, 59 Miss. 529; Bramlette v. State, 193 Miss. 24, 8 So.2d 234.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The venue was proven and the evidence was sufficient to show that appellant had been previously convicted for a first offense under Section 2613 of the Code of 1942.
Johnson v. State, 186 Miss. 544, 191 So. 115; Code of 1942, Sec. 1803.
As to proof of the first conviction, a certified copy of the justice of the peace's docket was duly introduced in evidence and is regular in all respects. This docket shows that an affidavit for the unlawful possession of liquor was made against the appellant, Joe Vincent, on the 31st day of March, 1945; that he was duly arrested and tried on April 2, 1945, at which time the said Joe Vincent pled guilty to said charge and was fined $100 and costs, which fine and costs were paid. All public officers in this state having the charge or custody of any public books, records, papers, or writings, are authorized to certify copies of the same, which copies shall be received in evidence in all cases where the original or a sworn copy would be evidence. No evidence was offered by the appellant or any witness in his behalf at the trial of this case; and, therefore, in the absence of any proof to the contrary, the validity of the judgment will be presumed.
Counsel for appellant contends that an affidavit is necessary for the justice of the peace to have jurisdiction, which, of course, is the law. However, the answer to this argument in this case is that this was a record of a first conviction. There was an affidavit in the instant case. This meets all the requirements of the law.
Appellant next contends that the proof is not sufficient to show that the appellant's conviction for the first offense was under Section 2613 of the Code of 1942. An indictment alleging in substance that defendant possessed liquor in violation of specified section of statute, and that it was the second time such offense had been committed, and that he had theretofore been convicted in the circuit court of designated county on definite date, was sufficient though not alleging that prior conviction was under specified section of statute.
McGowan v. State, 200 Miss. 270, 25 So.2d 131.
Appellant was convicted of the unlawful possession of intoxicating liquors and for a second violation of Section 2613, Code 1942. Appellant's principal contention is that the record does not sufficiently show that he had been convicted of a first offense. The offense for which appellant was convicted in the present case occurred on July 21, 1945.
When the trial of the case came on, the justice of the peace before whom the first conviction was had, was detained by illness and a copy of his docket entries covering the first conviction certified by him under Section 1725, Code 1942, was introduced by the State over the objection of appellant.
This docket shows that an affidavit made by A.A. Gore, charging appellant with the possession of liquor, had been filed with the justice of the peace on March 31, 1945. That a warrant had been issued on that day directed to the sheriff; that on April 2, 1945 the case came before the justice of the peace for trial and that the defendant therein entered a plea of guilty and was fined $100 and costs and that on the same day the fine and costs were paid.
The form of the certificate by the justice of the peace was substantially that used by officers in authenticating copies under Section 1725, Code 1942; but appellant says that the certificate should have been that set forth in Section 1199, Code 1942, which has to do with the certificate which is to be made to the record of the proceedings when there has been an appeal from the judgment rendered in the case covered by the particular record. And appellant objects further that no copy of the affidavit on which the first conviction was based was made a part of the transcript as required by Sections 1198 and 1199, Code 1942. In brief, the argument of appellant is that in order to make the requisite showing of a conviction of the first offense, the record thereof must be as fully introduced by a complete transcript thereof as if an appeal were being taken from the said first conviction.
In this appellant is mistaken, for the issue as to the first conviction is not whether appellant was therein properly convicted but whether as an affirmative matter he was finally convicted; and the record as introduced was sufficient to show that, and as already stated it was properly authenticated, as allowed under Section 1725, Code 1942.
The other points made by appellant have been examined, and found to be insufficient for a reversal.
Affirmed.
Sydney Smith, C.J., did not participate in this decision.