TURNER v. STATE

CRIMINAL LAW.

Circuit court's judgment of dismissal of appeal from justice court's judgment finding defendant guilty of misdemeanor, merely reciting that appeal was dismissed with writ of procedendo to court below to enforce its judgment, held not authorized in absence of showing that defendant was called and thereby given opportunity to prosecute appeal, or other showing of affirmative default by defendant.

Ethridge, P.J., delivered the opinion of the court.

The appellant, Seamae Turner, was convicted in a justice of the peace court of Jefferson Davis county for a misdemeanor and appealed to the circuit court, a transcript being sent up to that court. During the term of the circuit court the following order was entered:

"It is ordered by this court that this case be dismissed with a writ of procedendo to the justice of the peace court to enforce its judgment."

The judgment did not recite that the defendant was called and made default in appearing, and under former decisions of this court it is error to enter such a judgment without reciting therein that the defendant was called, and thereby given a chance to prosecute an appeal, or some showing of an affirmative default on the part of the defendant appealing.

For this error, we must reverse and remand this case under the authority of Ingram v. State, 136 Miss. 291, 101 So. 380; Peacock v. State (Miss.), 95 So. 647; Wilson v. Handsboro, 96 Miss. 376, 50 So. 982; and Pool v. State, 176 Miss. 514, 169 So. 886.

Reversed and remanded.