Roberts v. Town of Port Gibson

Mayes, J., delivered the opinion of the court. On the'26th day of December, 1905, Mrs. Roberts was convicted in the mayor’s court of the town of Port Gibson of unlawfully retailing intoxicating liquors in violation of the ordinances of the town. She executed bond and appealed to the circuit court of Claiborne county. The appeal bond was approved on the 27th day of December, 1905. Circuit court convened in January, 190,6, and after defendant’s counsel had filed a demurrer to the affidavit made in the mayor’s court, on which defendant was convicted, and a motion to discharge the appellant, which were both overruled by the learned judge, the case, was continued to the next term of the court, which was in June, 1906. When the court convened in June, this case was regularly called in due course, whereupon defendant’s counsel made another motion, which was overruled by the court. At this stage [79] in the proceeding the defendant, through her counsel, announced herself ready for trial and called for a jury. The record shows that the defendant was not personally present in court when counsel representing her asked for a trial. At the instance of the prosecuting attorney the court had defendant called, and, failing to appear, over the protest of counsel representing defendant and disregarding his demand for a trial, dismissed the appeal, took a forfeiture on the bond, and issued a writ of procedendo to the mayor’s court. A motion was made to set aside the order of the court dismissing the appeal, taking a forfeiture on the bond, and directing that a procedendo issue to the mayor’s court, which motion was overruled, and a judgment finally entered on the 30th day of June, 1906. We have not set out any of the motions made by counsel for defendant, nor have we set out the demurrer, as we do not deem them important in deciding this ease. On the 3d day of October, 1906, Mrs. Roberts made affidavit, under .§ 61, Annotated Code 1892, that by reason of her poverty she is unable to give an appeal bond for the purpose of appealing her cause to the supreme court,1 or to deposit a sufficient sum of money with the clerk for the purpose of covering the cost, and prays an appeal to the supreme court. This affidavit is made- in Shelby county, Tennessee, before a notary public, who recited that Mrs. Roberts personally appeared before him and made the oath on the 3d day of October, 1906. On the 5th day of October, 1906, this affidavit is filed in the office of the circuit clerk, and on the 28th of October, 1906, the record is filed in the clerk’s office of the supreme court. The record shows that Mrs. Roberts was in default of appearance in the circuit court, and that a forfeiture was taken on her bond there, and the affidavit shows that she was in the State of Tennessee at the time she made that. The record amply supports the conclusion that Mrs. Roberts is now at large on a forfeited appeal bond to the circuit court, and that she is not now, and has not been since the circuit court rendered its judg [80] ment, in the custody of the law, but that sbe is purposely away in an attempt to avoid being compelled to answer the judgment of tbe court. Tbe record discloses tbe fact that, tbougb still at large, and though Mrs. Roberts makes affidavit under .§ 61, Annotated Oode 1892, of ber inability to deposit money for cost or to give an appeal bond, sbe bas not given bail for ber appearance and surrender to tbe sheriff of tbe county to suffer tbe judgment or sentence, if it shall be affirmed by tbe supreme court, as is required by § 64, Annotated Code 1892. In this attitude of tbe record, counsel for prosecution make a motion to dismiss tbe appeal in tbe supreme court: (1) Because tbe record shows that sbe was convicted of an offense before tbe mayor, and appealed to the' circuit court, and, pending ber appeal, absconded and is now a fugitive from justice. (2) Because, as shown by tbe record, sbe is still outside tbe jurisdiction of this court, and bas not come into same, or surrendered herself to tbe officers of tbe law, before taking tbe, appeal. (3) Because tbe appeal is taken on an affidavit of poverty, as provided by § 61, Annotated Code 1892, and said section contemplated that tbe accused shall be in custody, and tbe sentence ■of tbe court enforceable, before tbe appeal shall be granted, or that bail shall be given as provided in ,§ 64, Annotated Code 1892. Whatever may be tbe cause of Mrs. Roberts’ absence, it is plainly manifest from tbe record that sbe was in default of appearance at tbe circuit court when her case was called, and that sbe bas not yet surrendered herself to tbe proper officers. If sbe was absent because sbe was sick when tbe case was called for trial in June, no application was made for a continuance on this account; nor does tbe record show that any information of this kind was given to tbe circuit judge. On tbe contrary, counsel representing defendant announced bis readiness for trial and insisted on tbe court’s proceeding with tbe trial. We can only try a cause on what tbe record is made to show when it [81] comes to us. Mrs. Roberts is not entitled to an appeal on her mere affidavit that she is unable to give an appeal bond, or deposit sufficient money to pay the cost, unless the record shows that she is in custody, or unless she gives bail to surrender herself to the sheriff of the county to suffer the judgment or sentence, if it shall be affirmed by the supreme court, as provided for in .§ 64, Annotated Code 1892. This appeal cannot be entertained here, for the reason that the record shows that she stands "under a sentence of the court, in default of appearance in the court which rendered the judgment, a fugitive, and not in custody of the law, and in this condition undertakes to prosecute an appeal to the supreme court without surrendering to the proper officer, and without giving, bail for her appearance to answer the judgment of the supreme court, in case the sentence or judgment is affirmed, by making an affidavit thát she is unable to deposit cost or give an appeal bond, while yet refusing to submit herself to the jurisdiction of the court, so as to show her willingness to answer such sentence or judgment as the court may render. In order to take the appeal, she must not only file the affidavit under .§ 61, Annotated Code 1892, but she must surrender herself to the proper officer, or execute a bail bond conditioned according to § 64, "Annotated Code 1892. Lum v. State, 66 Miss., 389 (5 South. Rep., 689). Let the motion be sustained and the appeal dismissed.