Summary
In Bass v. State, 159 Miss. 132, 131 So. 830 (1931), and Chandler v. State, 140 Miss. 524, 106 So. 265 (1925), the Court held that the justice of the peace's attempted dismissal of the case in vacation was void and that exclusive jurisdiction remained in the justice of the peace court and that the second court was "without power to proceed."
Summary of this case from Rhodes v. StateOpinion
No. 29012.
January 12, 1931.
1. CRIMINAL LAW.
Attempted dismissal of liquor case by justice of peace in vacation held void.
2. CRIMINAL LAW.
Where justice of peace dismissed liquor case without prejudice in vacation, and grand jury returned indictment for identical offense, circuit court had no jurisdiction, since exclusive jurisdiction remained with justice who first acquired jurisdiction.
3. CRIMINAL LAW.
Where circuit court had no jurisdiction, plea of guilty had no effect and did not prevent appeal to Supreme Court (Code 1930, section 16).
4. CRIMINAL LAW.
Plea of guilty in circuit court was not implied consent to action of justice of peace in dismissing case on his docket where defendant did not know justice had dismissed case.
APPEAL from circuit court of Marion county. HON. J.Q. LANGSTON, Judge.
T.B. Davis, of Columbia, for appellant.
Justice of the peace shall have jurisdiction concurrent with the circuit court over all crimes occurring in their several districts, etc.
Hemingway's Code 1917, sec. 248; Code of 1906, sec. 2749.
A justice of the peace court has jurisdiction, concurrent with the circuit court, of misdemeanors, and it is settled by the decisions of this court that, where concurrent jurisdiction is vested in two courts, the court first acquiring jurisdiction acquires exclusive jurisdiction.
Hampton v. State, 103 So. 10, 138 Miss. 196; Smith v. State, 93 Miss. 257, 46 So. 410; Neely v. State, 100 Miss. 211, 56 So. 377; Rodgers v. State, 101 Miss. 847, 58 So. 536.
An order or judgment of dismissal of a criminal prosecution is a judicial act, and, in order for such dismissal entered by a justice of the peace in vacation to be valid, some constitutional or statutory authority therefor must be found; and since none exists the order of dismissal in the case at bar is a nullity, and consequently the circuit court was without power to proceed upon the indictment.
Edwin R. Holmes, Jr., Assistant Attorney-General, for the state.
The Chandler and Mathis cases are not controlling here because of the signal difference between those cases and the instant case in this, to-wit, that while in each of those cases the accused entered a plea of not guilty, in the instant case the accused pled guilty to the offense with which he was charged. He now seeks in the face of section 12 of Hemingway's 1927 Code to appeal from a plea of guilty.
The state contends that as the circuit court had original jurisdiction of the offense charged, although such jurisdiction is concurrent with the jurisdiction of the justice of the peace court, the question of failure of the court's jurisdiction because of previously acquired jurisdiction by another court is not a jurisdictional question which can be raised for the first time on appeal. Where the court seeking to try a particular case never had jurisdiction of the subject-matter or of the person, such a jurisdictional question may, of course, be raised for the first time on appeal, but it is our contention that, according to the provisions of section 495 of Hemingway's 1927 Code, the circuit court had original jurisdiction of the subject-matter, namely the offense with which appellant was charged and that therefore, if appellant seeks to say that the court had lost its jurisdiction by reason of the previously acquired jurisdiction of another tribunal, such fact must be brought out in the lower court as a matter of defense and cannot be raised for the first time on appeal.
As the circuit court had original jurisdiction of the subject-matter but was without jurisdiction of the person of the appellant because of the fact of the irregular dismissal of the same cause against appellant in the justice court, it could acquire jurisdiction of his person only by his consent. When he was arraigned in the circuit court, he pled guilty to the charge without objecting to the jurisdiction of his person. That completed the jurisdiction of the circuit court.
Holley v. State, 74 Miss. 879.
Appellant was sentenced by the circuit court to pay a fine of two hundred fifty dollars and to serve thirty days in jail under an indictment charging the unlawful possession of intoxicating liquor, and appellant has appealed on the ground that, under the facts of the case, the circuit court had no jurisdiction of the subject-matter.
On June 20, 1930, an affidavit charging the said offense was made against appellant before a justice of the peace and a warrant was immediately issued returnable before the justice of the peace of the district where the offense was alleged to have occurred. Appellant was arrested on the same day, and on that same day he gave bond to appear for trial before the last-mentioned justice of the peace on the next regular court day of said justice of the peace, which was the 2d day of July, 1930. At the time, a regular term of the circuit court was in session, and certain parties whose names are immaterial — and whether acting upon sincere motives to enforce the law, or whether to further the promptings of malice, is not shown by the record — interested themselves in the case, and on the morning of June 23, 1930, these parties, or some of them, inter-meddling with the justice of the peace, approached the said officer and, on the assertion by them that it would be better that the grand jury handle the case, the said justice of the peace was persuaded to enter and did enter, on his docket in vacation and when he was without power in the premises, an order dismissing the case without prejudice, and this without the knowledge or consent of appellant.
Promptly on that same afternoon the grand jury returned an indictment for the identical alleged offense, and on the next morning, June 24, 1930, appellant was arrested and taken before the circuit court. The executive officer, who made the arrest, advised appellant that the best way out of the difficulty would be to plead guilty, in which event the said officer was of the opinion that there would be no jail sentence and that the fine would not probably exceed one hundred dollars. Since this amount was no more, or certainly not greatly more, than would be required to employ a capable lawyer to defend, appellant, a youth of not much general knowledge or experience, decided to accept the advice, and thereupon entered the suggested plea of guilty. But instead of receiving the sentence suggested, he was sentenced as first above stated, whereupon appellant at once decided that he needed the services of a capable lawyer rather than the advice of a blundering deputy. Such services he immediately secured, and a prompt motion was made, supported by affidavit and undisputed testimony, to set aside the plea of guilty and to dismiss or quash the indictment on the basis of the facts briefly hereinbefore set out, which motion was overruled by the court.
It will be observed from the statement of the facts that the case is similar in all essential respects to the facts in Chandler v. State and Mathis v. State, 140 Miss. 524, 106 So. 265. Those cases were considered by the court with more than the usual deliberation, and the result reached there, together with every word in the opinion therein written, has the entire approval and concurrence of every member of this court. The opinion there is not only sound in law, but is sound in logic and essential in practice. We decline to modify, or to take out a single sentence therein contained. There the court held that the attempted dismissal by the justice of the peace in vacation was void; that the exclusive jurisdiction remained with the court which first acquired jurisdiction; and that the second court was "without power to proceed."
But the state seeks to differentiate this case on two grounds: First, that here there is a plea of guilty, and under section 16, Code 1930, no appeal is allowed to the Supreme Court from such a plea. The answer to that is that the circuit court had no jurisdiction of the case, and a plea made there in the case was of no more effect than if made before the board of supervisors or some other assembly having no jurisdiction of that case. Second, that the plea of guilty was an implied consent to the action of the justice of the peace in dismissing the case then pending on his docket. It is undisputed in this record that appellant had no knowledge that the justice of the peace had dismissed, or rather had attempted to dismiss, the case; and we suppose nothing more than a truism is stated in the proposition that no man can be held to have consented to an act of which he had no knowledge, and of which he was under no special duty to inquire.
If the contention of the state in this case could be upheld, then, because the jurisdiction of justice courts and of circuit courts in misdemeanor cases is concurrent, this could happen: An indictment for a misdemeanor, however grave, has been returned by the grand jury and the case has been continued until the next term of the circuit court for trial. The circuit judge, on the motion of the prosecuting attorney, has during vacation entered an order of nolle pros., and thereupon, and immediately thereafter, an affidavit for the same offense has been made before a justice of the peace, a plea of guilty entered, and sentence of one dollar fine and costs has been pronounced and entered. This under the argument of the state here would be a valid and final adjudication, precluding any further prosecution for the same offense under state statutes. Who would make so bold as to contend for such a result?
The judgment is reversed, the indictment is quashed, and the appellant is discharged in so far as the said indictment is concerned.
So ordered.