KEENE v. STATE

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Docket Number

No. 35109.

Attorney(S)

C.E. Gibson, of Monticello, for appellant. It may be urged that there was not a trial on its merits, but I respectfully submit that there were several final dispositions of the cases in which the defendant was prosecuted for the identical crime for which he now stands convicted. The motion for a new trial in my humble opinion should have been sustained. Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney General, for appellee. The appellant assigns as error that the evidence is insufficient to support the verdict of the jury; that the court erred in overruling motion for a new trial, in that appellant was tried and acquitted in the justice of the peace court on an affidavit charging him with cutting the identical timber involved in this case. The appellant was indicted under Section 1149 of the Code of 1930 and the evidence for the state fully sustained the charges in the indictment. The evidence of the owner of the land, J. Arthur White, fully met all the requirements of the statute, making it a question for the jury as to the guilt or innocence of the appellant. On appellant's motion for a new trial evidence was introduced as to the former trial and acquittal of appellant. The evidence shows conclusively that the charge against appellant in the justice of the peace court was dismissed for lack of prosecution and there was no hearing upon the merits. Section 22 of the Constitution of 1890 provides that there must be actual acquittal or conviction on the merits to bar another prosecution. Section 1191, Code of 1930, provides that there must be an actual acquittal on the merits of the case.

Judges

Griffith, J., delivered the opinion of the court.

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KEENE v. STATE.

1. CRIMINAL LAW.

Evidence sustained conviction of a misdemeanor.

2. CRIMINAL LAW.

Under liberal rules of interpretation applied to judgments of justices of the peace, mere matters of form will not invalidate them, but such judgments must fulfill requirement, applicable to all courts, that judgment be reasonably definite and certain.

3. CRIMINAL LAW.

In misdemeanor prosecution in circuit court, judgment of justice of the peace in previous prosecution for identical offense dismissing cause for lack of evidence, from which judgment it could not be determined whether case was dismissed for want of prosecution or because evidence was introduced and found lacking in probative force, was not sufficiently definite to sustain a plea of former acquittal.

Griffith, J., delivered the opinion of the court.

Appellant was convicted in the circuit court under an indictment charging a misdemeanor. The evidence was ample in support of the verdict. It appears, however, that a previous prosecution for the identical offense had been instituted in the justice court, and was there dismissed; and this is relied on as a bar to the judgment and sentence in the present case.

The judgment entered by the justice of the peace is as follows: "This cause was dismissed for the lack of evidence."

It will be at once observed that it cannot be told from this cryptic entry whether the case was dismissed because no evidence was produced, which would be a dismissal for want of prosecution, or whether evidence was introduced but was found lacking in probative force. Oral testimony was received by the circuit court, without objection and without dispute, which showed that no evidence whatever was introduced in the justice court, and that in fact the cause was dismissed for want of prosecution. We lay this aside as if objection had been made and sustained.

Liberal rules of interpretation must of necessity be applied to judgments of justices of the peace, Ladnier v. Ladnier, 64 Miss. 368, 372, 1 So. 492, and mere matters of form will not invalidate them. At the same time they must in substance fulfill the requirement, applicable to all courts, that a judgment shall be reasonaby definite and certain. 35 C.J. 656, and authorities under note 42. See, aso, 31 Am. Jur. 753, 754. The quoted judgment fails to meet this test and is not sufficient to sustain the plea of former acquittal.

Affirmed.

KEENE v. STATE.

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