* 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). 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 case 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 *Page 167 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 having 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 *Page 168 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 ofprocedendo to the justice of the peace.
Reversed and remanded.