State v. Gowing

Hall, J. The action of the circuit court was on the theory that the justice’s judgment was void, by reason of the failure to arraign defendant; that there was nothing to appeal from to the circuit court, and that, therefore, the appeal was improperly taken. By section 2058, Revised Statutes, it is provided that any person, convicted before a justice of the peace for any misdemeanor, may appeal to the circuit or other court having jurisdiction in criminal' cases, by complying with the provisions of said section. By section 2063, Revised Statutes, a trial de novo in the circuit court of all cases properly appealed is provided. The right of appeal does not depend upon the validity of the justice’s judgment. The defendant may appeal from a void judgment against him, if he sees fit to do so, in which case the cause should be tried on its merits in the circuit court. In this case the defendant should have been arraigned in the circuit court, and the cause should then have been tried on its merits. Judgment reversed and cause remanded, to be proceeded with in conformity with this opinion. All concur.