State v. McCullom

274 So. 2d 140, 1973 Miss. LEXIS 1592

• Court: Mississippi Supreme Court
• Decided: February 26, 1973
• Docket: No. 47168
• Status: Published

Opinion

PATTERSON, Justice:

This is an appeal by the State from a decision of the Circuit Court of Sunflower County wherein a mistrial was ordered by the Circuit Judge in the trial of William L. McCullom for the crime of murder.

The State’s assignment of error is that the court erred in directing the mistrial. Mississippi Code 1942 Annotated section 1153 (1956), provides the categories in which the State or a municipality may appeal in criminal cases. Succinctly quoted, they are:

“1. From a judgment sustaining a demurrer to, or a motion to quash an indictment, or an affidavit charging crime; . .

“2. From a judgment actually acquitting the defendant where a question of law has been decided adversely to the state or municipality ;

“3. From a ruling adverse to the state or municipality in every case in which the defendant is convicted and prosecutes an appeal; . . . ”

The second and third categories above have long been held to authorize an appeal only from a final judgment of acquittal or conviction. State v. McDowell, 72 Miss. 138, 17 So. 213 (1894). An order of mistrial adjudicates nothing relating to guilt or innocence. It is therefore not a final judgment.

The jurisdiction of this Court has not been mentioned by either the State or the appellee, but we raise it on our own motion since, lacking it, we have no authority to decide the issue presented by the abortive appeal.

Appeal dismissed.

RODGERS, P. J., and INZER, ROBERTSON and WALKER, JJ., concur.