
    Moorehead v. State
    No. 40294
    December 10, 1956
    91 So. 2d 272
    
      
      Laurel G. Weir, Philadelphia; Frank F. Mise, Forest, for appellant.
    
      
      John U. Price, Jr., Asst.Atty. Gen., Jackson, for appel-lee.
   Gillespie, J.

Appellant was indicted, tried and convicted in circuit court on a charge of assault. A previous prosecution for the identical offense had been instituted in the justice of the peace court, where the following order was entered: “The defendant did appear for trial but the prosecution did not appear with any evidence. The case was thrown out of court for want of prosecution.” The justice of the peace testified without objection that he did not swear any witness and took no testimony, but we lay aside this testimony as if objection had been made and sustained. The order of the justice of the peace shows that appellant was not prosecuted in that court and appellant was not there put in jeopardy. The judgment entered by the justice of the peace was not sufficient to sustain the plea of former jeopardy relied upon by appellant in bar of the judgment and sentence in the present case. Keene v. State, 194 Miss. 233, 11 So. 2d 899.

A careful consideration of the other assignments of error reveals no reversible error. The conflict in evidence made a typical issue for the jury to decide.

Affirmed.

Roberds, P. J., and Hall, Kyle and Arrington, JJ., concur.  