delivered the opinion of the court.
Affidavit was made by the constable before a justice of the peace, charging appellant with unlawfully aiming a gun at a person named. A jury was summoned by the constable to try him; whereupon he made a motion to discharge the jury summoned, because they were selected by an interested party, to wit, the constable, who made the affidavit against him. This motion was overruled, and he was then tried by the jury, and was convicted and sentenced. An appeal was prosecuted to the circuit court, and there appellant made a motion to dismiss the case “because the record does not show that the defendant was convicted by the jury called to try his case in the justice court, and for the further reason that the case was not tried in term time, but was tried in vacation, over the protest of defendant.” This motion was overruled. The district attorney, not to be outdone by defendant, countered with a motion to dismiss the appeal, which motion was sustained by the *590court, over the earnest protest of defendant, who demanded a trial de novo.
It is difficult to understand why the court dismissed the appeal. Sec. 87 of the Code of 1906 provides that, when an appeal is prosecuted from a conviction by a justice of the peace to the circuit court, said appeal shall be tried de novo. What was clone in the justice court can in no wise affect the right of appellant to a trial in the circuit, court, nor can any motion made in the circuit court prejudice his right to a trial of the case on its merits.
Reversed and remanded.