Opinion
8 Div. 951.
February 27, 1940.
Appeal from Circuit Court, Colbert County; Chas. P. Almon, Judge.
Henry Gargis was convicted of nonsupport, and he appeals.
Affirmed.
The prosecution was commenced by affidavit before a justice of the peace, charging that defendant did, within twelve months of the commencement of this prosecution, desert or wilfully neglect or refuse or fail to provide for the support and maintenance of his wife and his children who are under the age of 18 years and who were then and there in destitute or necessitous circumstances; and warrant issued by said justice of the peace commanding that defendant be arrested and brought before C. E. Carmichael, judge of the county court of Colbert county.
Upon conviction in said county court, defendant appealed to the circuit court, where he was put to trial upon a statement or complaint by the circuit solicitor, charging the same offense. Defendant, in the circuit court, filed a motion to quash the affidavit and warrant and the solicitor's statement based thereon, and also demurred to the affidavit and warrant and statement of the solicitor. Motion to quash was stricken on motion of the solicitor, and demurrer was overruled.
F. E. Throckmorton, of Tuscumbia, for appellant.
The affidavit before the justice of the peace and warrant issued thereon ordering defendant to be brought before the county court, his conviction in said court and the solicitor's statement in circuit court and his conviction in that court are all void. The probate court has exclusive and original jurisdiction in all cases arising under the statute. Code, §§ 4480, 4484.
The solicitor's statement in the circuit court is void because based upon an unauthorized affidavit made before a justice of the peace. Nailer v. State, 18 Ala. App. 127, 90 So. 131. The question of voidability of the affidavit was raised by motion to quash. Nailer v. State, supra. Under the evidence the desertion took place more than 12 months before commencement of the prosecution; hence, the question whether the wife and children were destitute at the time of desertion should not be considered. Griggs v. State, 19 Ala. App. 517, 98 So. 490.
Thos. S. Lawson, Atty. Gen., and Willard McCall, Asst. Atty. Gen., for the State.
The question of jurisdiction not being raised by proper plea is waived. Sanders v. State, 16 Ala. App. 531, 79 So. 312. The question of the circuit court's jurisdiction of the person to try on an affidavit and warrant issued by a justice of the peace and made returnable direct to the circuit court cannot be raised by demurrer to the affidavit. Sanders v. State, supra. In absence of statutory authority a justice of the peace cannot issue a warrant and make it returnable to the circuit court, but the issuing of the warrant involves the jurisdiction of the person and in absence of a proper plea in abatement is deemed to be waived. Sanders v. State, supra.
Appellant was convicted of the offense denounced by Code 1928, Sec. 4480.
It is not controverted but that the circuit court, from which this appeal comes, had jurisdiction of the subject matter of the offense stated in the complaint filed in that court by the solicitor.
And when jurisdiction of the subject matter is conferred by law, jurisdiction of person may be conferred by consent.
Here, the circuit court having jurisdiction of the subject matter charged in the solicitor's complaint, and there being no plea to the jurisdiction filed, the question of the jurisdiction, vel non, of the person must be deemed to have been waived. Sanders v. State, 16 Ala. App. 531, 79 So. 312.
The offense charged against appellant was a continuing offense, and we do not understand that prosecution must be begun under the Code section above cited within twelve months from the beginning of same.
The evidence on behalf of the State and that on behalf of the defendant (appellant) was such that it was proper to leave the contested issues to the jury trying the case. We observe nowhere that they were erroneously instructed by the court.
The few exceptions reserved on the taking of testimony have each been examined. None of them have merit.
No error appears of record, and the judgment appealed from is affirmed.
Affirmed.
SIMPSON, J., not sitting.