Bang v. State

Justice of the Peace. Appeal. Right to dismiss. Code 1906, section 87. Under Code 1906, section 87 providing for appeals from a justice of the peace court to the circuit court and that on such an appeal the case shall he tried anew, a defendant convicted of a criminal charge in the justice of the peace court who appeals his case to the circuit court cannot dismiss his appeal in that court after the state has introduced its evidence.

Appeal from the circuit court of Harrison county. HoN. T. H. Barrett, Judge. Pier Bank was convicted of selling intoxicating liquors and appeals. The facts are fully stated in the opinion of the court. We think that the appellant has a right to dismiss his appeal any time before a verdict by the jury or before the jury retired. 2 Ency. Pleading and Practice, p. 51, lays down the following rule, and we think it decisive of our contention: “It is the general rule that the appellant may have his own appeal dismissed at any time while the cause remains within the jurisdiction of the appellate court.” There is no difference between a civil case and a criminal case in this respect. In civil cases it is not disputed but that the appellant would have the right to dismiss his appeal where there was no counter claim by the ap-pellee. See, also, the following cases which we think in point: Wartelski v. State, 44 S. W. 510; State v. Read, 105 S. W. 601; Rivera v. State, 105 S. W. 193; Lee v. State. 124 Pac. 1132. We think the state had no right to compel appellant to continue with the trial when he moved the court to dismiss his appeal and elected to take the judgment of the lower court. Hence, we submit that the court improperly overruled appellant’s motion for a new trial and that this case, for these errors, should be reversed. Counsel for appellant contends in his brief that appellant’s motion to dismiss his appeal, after evidence for the state had been heard should have been granted. To support this contention numerous cases are cited. All the witnesses for the state had been introduced and the state had rested its case. To adopt this view of the law would mean that the state, in many cases would be put to a useless expense and waste of time. A person convicted of crime in the justice’s court could appeal to the circuit court and if the state made out a good case there, and if all of the state’s witnesses were present, he could get his case dismissed and take the lighter sentence imposed by the justices’ court. If, however, the state’s witnesses happened to be absent or if the state did not make out as strong a case against the defendant as it did in the lower court he would then proceed with the trial. We respectfully submit that this imposes an unjust burden on the state. Counsel for appellant cites numerous cases from other states, which I will briefly allude to. In the case of State v. Read, 105 S. W. 601, an appeal was carried to the supreme court of Missouri. After case was briefed appellant filed a formal dismissal of his case. In the case of Rivera v. State, 105 S. W. 193, an ex parte affidavit was filed asking the court to dismiss the appeal. This appeal was dismissed by the supreme court of Texas. In the case of Lee v. State, 124 Pac. 1132, the motion to dismiss was filed in the supreme court. Ill the present case a simple motion was made to dismiss after all of the state evidence had been produced. We submit that it was not the intention of section 87 of the Code of 1906, for appellant to dismiss his appeal at will. In reference to an appeal to the circuit court this section reads as follows: “On his appearance in the circuit court the case shall be tried anew and disposed of as other cases pending therein. ’1 2 Enc. of PI. & Pr., p. 51, is as follows: “An intermediate appellate court cannot dismiss an appeal arbitrarily and without cause.” We submit that the cause for a dismissal should be shown by appellant and the trial court was not authorized in dismissing the case arbitrarily and unless cause for so doing was shown by appellant. It is manifest from the record that appellant is guilty of the crime charged against him, and he cannot complain that the sentence is excessive. We respectfully submit that the case should be affirmed.