Bang v. State

Reed, J., delivered the opinion of the court. Appellant was convicted in a justice of the peace court for the offense of unlawfully selling intoxicating liquors, and-fined one hundred and fifty dollars. He appealed to the circuit court, and was there convicted and sentenced to pay a fine of five hundred dollars and tó be imprisoned for a term of three months in the county jail. On the trial in the circuit court, when the state had introduced all of its testimony and rested, appellant moved the court for permission to dismiss his appeal. The motion was overruled. This action of the court is assigned as error. By statute (section 87 of Code of 1906) a person convicted of a criminal charge in the justice of the peace court can appeal his case to the circuit court. It is provided in the statute that “on his appearance in the circuit court the case shall be tried anew and disposed of as other cases pending therein. ’ ’ It will be seen that the case is brought into the circuit court by [827] appeal from the judgment of the justice of the peace court. When it reaches the circuit court, it is there for trial anew, and disposition just as other cases therein pending. The circuit court is a trial court. The case, although brought to that court by appeal, is there for trial. In this prosecution for a criminal offense, appellant, while his case was being tried, occupied the came position as any other defendant being tried on a criminal charge. We take the following from a note in 2 Ene. of PI. & Prac., p. 351, on the subject of the right of an appellant to dismiss his case on a trial d'e novo: “Where, on appeal to an inferior tribunal by a defendant, the trial' is to be had anew, he occupies’ on the appeal the same relative position of defendant, and has no greater right to have the appeal dismissed on his own motion than he had to have it discontinued below.” To sustain the text just quoted, the case of Bingham v. Waterhouse, 32 Tex. 468, is cited. That case was an appeal by an administrator to the district court from an order of the probate court. It was decided that he had no right to appear in the district court and dismiss his appeal, because he stood there for trial de novo as defendant, and he occupied in that court the same attitude of a defendant as he did in the probate court, and as such was impotent to dismiss the case. We quote from the opinion, in that case delivered by Moerill, C. J.: “When the parties appeared in the district court, they occupied the same relative positions of plaintiff and defendant they did in the probate court, because the appeal was required to be tried de novo. Article 1460 [Paschal’s Dig.]. He had the same right to dismiss or enter a nolle prosequi in the case that he had in the probate court, and no other; and this right was the same that any defendant has in the district court to dismiss the case from the docket.” The trial judge did not err when he overruled the motion of appellant in this case for permission to dismiss [828] his appeal. Appellant was being tried anew in the circuit court. He was on trial for the crime charged against him. His case was being disposed of as other and like cases in that court. All of the evidence to prove his guilt had been introduced on- behalf of the state. The proof was sufficient to support a verdict convicting him. He had no right then to have his ease dismissed. Affirmed.