
    Young v. State.
    
    (Division B.
    Sept. 21, 1925.)
    [105 So. 461.
    No. 24865.]
    1. Criminal Daw. Indictment and information. Circuit court has no original jurisdiction to try misdemeanor, except on indict■ment hy grand jury; on failurp to show indictment for misdemeanor, and on showing hy record that there was no trial in justice court, with proper appeal proceedings, conviction toill he reversed.
    
    A circuit court has no original jurisdiction to try a misdemeanor, except by indictment of a grand jury, and where no indictment is shown in the record, but on the contrary an affidavit, and where the record shows that there was no trial in the justice court, with proper appeal proceedings, the judgment of conviction will be reversed.
    2. Criminal Law. Indictment and information. Justice of the peace has no authority to waive trial for misdemeanor and hind ac
      
      cused over to await action of grand jury, unless charge preferred may he punished as felony under certain conditions; if accused is hound over to await action of grand jury, instead of trial hy justice of peace, circuit court cannot proceed for misdemeanor on affidavit filed before justice of peace.
    
    A justice of the peace has no authority to waive a trial for misdemeanor and bind the defendant over to await the action of the grand jury, unless the charge preferred may be punished as a felony under certain conditions; and where a defendant is bound over to await the action of the grand jury, instead of being tried a circuit court cannot proceed on the affidavit filed before the justice of the peace.
    Appeal from circuit court, of Monroe county.
    Hon. C. P. Long, Judge.
    Wylie Young was convicted -of trespass to real estate, and lie appeals.
    Reversed and remanded, with directions.
    
      W. II. Clifton and’W. A. Blair, for appellant.
    
      Leftwich & Tubb and J. L. Byrd, Assistant Attorney-General, for the state.
    
      
      Headnotes 1. Criminal Law, 17 C. J., Section 3750; Indictments and Informations, 31 C. J., Section 20; 2. Criminal Law, 16 C. J., Section 600 (Anno).
    
   Ethktdge, J.,

delivered the opinion of the court.

The appellant was tried in the circuit court on charge of trespass to real estate, convicted, and sentenced to ninety days in jail and fined two hundred and fifty dollars and costs. The casé was tried in the circuit court on an affidavit, and not on an indictment. The record as originally sent up contained no transcript from the justice of the peace, and contains no appeal bond or affidavit in lieu thereof. The only thing in the record is a judgment of the justice court, imposing a fine of fifty dollars and costs, and that the defendant prays an appeal and entered into bond, fixed on approval at five hundred dollars. The transcript then recites: “This same judgment in the other case and all tried the same day. He was fined fifty dollars in the two charges of theft, and waived examination of ■ the criminal trespass, and entered into bond to appear at the next term of the circuit court, and also the action of the grand jury.”

The justice of the peace was introduced on trial and testified : “Well, he was indicted in the court for cutting timber on the land, and when I had him arrested and brought up for trial, he did not deny haying cut the timber. He didn’t deny having been upon the land, and, in fact, didn’t deny any of the charges, so we didn’t try him any further. I just fined him fifty dollars in two cases and bound him over in one. ’ ’

It now appears that he was fined in two cases for theft, and bound over to the grand jury for trespass.

Section 89, Code of 1906 (Hemingway’s Code, section 71), requires a transcript of the proceedings before the justice of the peace to be certified to the circuit court, together with bond for appeal. In Hughston v. Cornish, 59 Miss. 372, it was held that the record required to be transmitted by this section is a copy of the justice’s docket entries and judgment. In Ball v. Sledge, 82 Miss. 747, 35 So. 214, it was held that the circuit court had no jurisdiction of an appeal taken from a justice of the peace, unless the record shows that a judgment was rendered by the justice of the peace and an appeal bond executed.

This being true, it appears in the present case that there was no transcript showing a conviction by the justice of the peace of the offense charged in the affidavit, and the circuit court consequently did not have jurisdiction of the case by appeal. There was no indictment by the grand jury, and the circuit court did not obtain jurisdiction of the offense by indictment. The circuit court cannot proceed originally in misdemeanor cases without an indictment. • It does not, therefore, appear that the circuit court had jurisdiction of the offense, and jurisdiction is essential, and this court will reverse, where it appears that the court below did not have jurisdiction.

The judgment will therefore be reversed, and the case remanded, with directions to the court below to issue a writ of procedendo to the justice of the peace.

Reversed and remanded.  