Fairley v. State

75 So. 374, 114 Miss. 510

Opinions

Cook, J.,

delivered the opinion of the court.

Per Curiam. Appeal dismissed.

On Motion.

The appellant was convicted in the circuit court of Forrest county upon a charge of selling intoxicating liquors, and was sentenced to pay a fine of one hundred dollars and to confinement in the county jail for a term of thirty days. From this judgment this appeal was prosecuted. A petition for appeal was filed, accompanied by a pauper’s oath.

A motion is now filed by appellant asking this court, upon the affirmance of the judgment below, that she be allowed credit for the time she remained in jail pending this appeal. This motion is predicated upon section 4934, Code of 1906, which is in these words:

“In case of an affirmance by the supreme court of a judgment for imprisonment, if the appellant had remained in prison pending the appeal, the time of imprisonment shall be credited to him, but if he have been on bail, the supreme court shall fix the time for the commencement of his imprisonment, under the judgment of affirmance, so as to cause him to suffer the full time .of imprisonment fixed by the judgment of the court below. ’ ’

The attorney-general insists that, inasmuch as this appeal has been dismissed, “the court is without jurisdiction to entertain this motion, because the case is not in this court any longer.” We do not think that the contention of the attorney-general is maintainable. Until the term of court has expired this court has full jurisdiction over any order or judgment made by the court during the term.

The order dismissing the appeal heretofore made is equivalent to an affirmance. If the appellant had seen fit to voluntarily dismiss her appeal, an affirmance would follow under section 4932 of the Code. In this instance she did not prosecute 'her appeal which accomplished the same result. .

It appearing that appellant has remained in jail since she was convicted, much more than for the thirty days she was sentenced, the judgment will be affirmed, and appellant will be discharged upon the payment of the fine and all costs of both courts.

Affirmed.