In September, 1882, David Brundage- and David Thomas were charged with larceny before a justice of the peace of Baxter county.
On the day set for trial (ninth of October, 1882) the defendant moved that James Lingo, the prosecutor, be required to give bond for costs, and the justice so ordered. Whereupon Lingo filed an affidavit that he was unable to-give bond to prosecute the case, and that he had been injured in his personal property. Thereupon the justice ordered a jury and proceeded with the trial; defendants were found guilty, and the verdict and judgment were that each of them be fined $25 and imprisoned in the county jail for twenty-four hours. They prayed an appeal to the circuit-court, which was granted by the justice.
At the next term of the circuit court, to which the appeal was taken, Brundage appeared in person, but Thomas failed to appear otherwise than by attorney. The attorneys for ■defendants renewed the motion made before the justice, ■that Lingo, the prosecutor, be required to give bond for cost, and that on his failure to do so, or to make the affidavit required by the statute, the prosecution be abated. The court overruled the motion as to Thomas, behaving failed to appear personally to prosecute his appeal, but sustained the motion as to Brundage, with leave to James Graves, the alleged owner of the stolen property, to .execute bond for costs, and- he declining to give bond, or make affidavit of his inability to do so, the court rendered judgment abating the prosecution as to Brundage and discharging him with costs.
Thomas was then called, failed to appear, and the judgment of the justice as to him was affirmed with costs, and execution awarded.
° Whether the court below erred in abating the prosecution as to Brundage is not before us, the State having taken no appeal.
criminat. Practice: Appeal lant failpear0 On appeal from a judgment of a justice of the peace to . , ... . the circuit court, m a criminal prosecution-, the case stands trial de novo. The statute does not authorize an affirm-°f the judgment on failure of the appellant to appear. Gantt’s Dig., sec. 2,109,
The court, in its discretion, may order appellant brought in on a warrant, or dismiss the appeal, and award a mandate to the justice to execute his judgment.
Reversed and remanded for further proceedings.