Lemly v. State

69 Miss. 628

Opinion

Woods, J.,

made this response to the suggestion of error filed to the former judgment of the court

Section 2314, code of 1880, the same being a part of chapter 63 of the code, entitled “An act in relation to appeals,” gives to any person convicted of any offense in a circuit court, an appeal to the supreme court.

The contention is that any person convicted by verdict of a jury may appeal, even before, and in the absence of, any sentence or judgment of the court upon the finding of the jury. Despite the technical refinements of a few courts holding to this, based chiefly upon the distinctions, under the old common law, between the consequences of conviction by verdict and attainder under sentence, the current of authority and the strength of reason is against the contention. But, however this may be, there is left in this state no room for doubt as to the meaning of the word “ conviction,” as used in the chapter of the code referred to.

Section 2335, of the same chapter, declares that “ appeals in criminal cases shall not stay the judgment of sentence appealed from,” unless bond shall be given, etc.

Section 2339 says: “ In all cases of conviction of a misdemeanor, an appeal, taken as aforesaid, shall stay the judgment appealed from,” and shall operate as a supersedeas, as therein prescribed.

It thus seems perfectly clear that the appeal referred to in § 2314 lies only from the judgment or sentence of the court.

Denied.