
    Jesse Holifield v. City of Laurel.
    [50 South. 488.]
    Criminal Law and Procedure. Unlawful sale of intoxicating liquors-Municipal ordinance. Evidence. Witness in former trial. Absent from state. Trial de novo on appeal.
    
    The testimony oí a witness before a municipal court, in a prosecution for tbe violation of an ordinance, may not be used on a de-novo trial in the circuit court on appeal from a conviction in tbe . court in which the prosecution was begun, although the witness, has removed from the state.
    Pbom tbe circuit court of, second district, Jones county.
    HoN. Robebt L. Bullabd, Judge.
    "Holifield, appellant, was tried and convicted in tbe municipal court of Laurel for tbe violation of an ordinance of tbe city forbidding tbe unlawful sale of intoxicating liquors. On tbe trial in tbe city court one Posey was a material witness for tbe prosecution. Defendant, Holifield, appealed from tbe conviction to tbe circuit court of tbe county and was there tried de novo. "When tbe case came on for trial in tbe circuit court Posey was not present, but upon it being made known to tbe court that be bad removed to tbe state of Alabama, tbe court, over defendant’s objection, permitted tbe prosecution to prove by tbe police justice, who presided in tbe municipal court, wbat the absent witness bad testified in tbe trial before him. Defendant was convicted in tbe circuit court and appealed to tbe supreme court.
    
      B. E. Halsell, for appellant.
    
      George Butter, assistant attorney-general, and W. S. Welch, for appellee.
    [Tbe briefs of counsel were withdrawn "or lost from tbe record when it reached tbe reporter; hence no synopses of them is given in this report.]"
   Whiteield, C. J.,

delivered tbe opinion, of tbe court.

Tbe testimony of tbe police justice of tbe city of Laurel, Mr. Gavin, is manifestly incompetent, under tbe decisions of Owens v. State, 63 Miss. 450, and Dukes v. State, 80 Miss. 353, 31 South. 744. Tbe whole subject was exhaustively considered in tbe case of Dulces v. State, supra, and we feel ourselves bound, by tbe former decisions of this court, to bold as we have announced therein. We said, in tbe Dukes case, at page 362 of 80 Miss., and page 745 of 31 South.: “It doubtless would be well for our legislature to enact that such testimony should be received in all the categories mentioned in section 1195 of Dr. Bishop’s New Criminal Procedure. Volume 1, § 1195.” In that section Mr. Bishop said: “Of necessity, if a witness has died, or has become insane, though but temporarily, or by tbe opposite party is kept out of the way, or is too ill or infirm to come to the court (for it .cannot adjourn to his house), or if from any cause for which the party is not responsible, such as residence beyond the process of the court, or the like, the witness’ personal presence cannot be had (a rule as to which tbe decisions are somewhat indistinct and inharmonious), added to which, if there has been a prior proceeding, involving the same issue, between the same parties, conducted regularly in pursuance of law, and therein the defendant had the opportunity to cross-examine the witness against him — not otherwise — what was on such former hearing testified to by a witness whose presence cannot now be had may be shown against the defendant.”

We once more repeat that the legislature should change the rule of evidence on this subject, as indicated in that section, and we trust that the legislature soon to meet will not fail so to do.

Reversed and remanded.

Mates, J.,

delivered the following specially concurring opinion.

I concur in the result reached by the court and also the law declared in the opinion, but I dissent from that part of the opinion which suggests to the legislature that there should be any change in the rule of evidence on the subject dealt with in the main body of the opinion. Indeed, I think it will be unwise for the legislature to change this well-established rule or to extend the doctrine announced by the opinion further than the courts have already extended it.  