Summary
In Hegwood v. State, 206 Miss. 160, 166, 39 So.2d 865, 866 (1949), an affidavit was first made against the defendant in justice court for a liquor law violation, but on the day of the hearing, when counsel for both sides were present, the State moved to dismiss the charge without prejudice, which was sustained by the justice court.
Summary of this case from Simmons v. StateOpinion
April 11, 1949.
1. Courts — concurent jurisdiction — dismissal.
Where concurrent jurisdiction of a criminal prosecution is vested in two courts, the court first acquiring jurisdiction should proceed with trial and disposition, but the latter court may relinquish its exclusive jurisdiction by a valid order of dismissal without prejudice, so that the other court may then proceed with prosecution of the same offense.
2. Criminal procedure — courts — concurrent jurisdiction — dismissal without prejudice.
Where a prosecution for the unlawful sale of intoxicating liquor had been instituted in the court of a justice of the peace and on being called for trial was validly dismissed without prejudice, the circuit court had jurisdiction of a subsequent indictment for the same offense.
3. Criminal procedure — evidence — witnesses — previous convictions.
When in a criminal prosecution the defendant is testifying in his own behalf he may be required to answer as to previous convictions, not as evidence of guilt in the present case but as affecting his credibility as a witness.
4. Appeal — criminal procedure.
Unless the court can say that the verdict of conviction is manifestly wrong or against the overwhelming weight of the evidence, the judgment based thereon will be affirmed.
Headnotes as approved by Smith, J.
APPEAL from the circuit court of Jasper County; HOMER CURRIE, J.
J.L. Thompson, for appellant.
We take the position in this case that inasmuch as the affidavit for the search warrant, and the warrant itself, and also an additional affidavit, particularly charging appellant for possession of liquor in this case, was made returnable before one J.B. Dykes, a justice of the peace in Beat No. 4, of the county, gave this court full and complete jurisdiction of the case; mainly so, because of the affidavit charging appellant with the unlawful possession in the case. This fact put the case squarely in the hands of this justice to try and dispose of the matter, fully and finally; it being a misdemeanor and not a felony, except an appeal to the circuit court, if necessary by appellant. Bond was given by him to so appear, and he appeared in person and by counsel, and announced ready for trial and entered his plea of "not guilty" to the charge, preferred by affidavit, and too, at a time when the State had announced ready. Soon thereafter, the county attorney, moved the court to dismiss the case; which as a matter of fact, appellant and his counsel understood that that motion fully disposed of the case finally; but after the court had adjourned (justice court) the State's counsel entered on the justice's docket that the case was "dismissed without prejudice to the State". This was done at a time that we knew nothing about, and entirely in our absence, and long after adjournment of the court. We think the court will readily see from this record, that this motion to dismiss was to transfer this case from the jurisdiction of the justice of the peace to that of the circuit court of the county, as though the case was a felony, and get the jurisdiction changed, after it had set up in the lower court. We were right there present in the justice court, ready for trial and wanted a trial, yet in the face of this, the jurisdiction undertook to shift, and at a time we knew not.
A justice court is a court of competent jurisdiction, and as we understand the rule to be, that when jurisdiction is first acquired, and taken that jurisdiction should continue and the case proceed to final conclusion, as far as that court is concerned, and that in this case we do not believe the circuit court could have any jurisdiction of appellant's case here, except by appeal by him. Here we have two courts of justice, the State's set-up under its constitution with the jurisdiction of each clearly set forth and defined, and we would not think, that it would be the policy of the State or its intention to take from either to supply another.
Sec. 1932, Code 1942, expressly provides that on "affidavit of the commission of any crime of which he has jurisdiction lodged with a justice of the peace, he shall issue a warrant for the arrest of the offender, returnable forthwith or on a certain day to be named, and shall subpoena for witnesses as in civil cases, and shall try and dispose of the case according to law; and on conviction shall order such punishment to be inflicted as the law provides". We find that an affidavit is a prerequisite or essential to prosecution for misdemeanors; it is the foundation of the jurisdiction of the justice of the peace, and the court has no jurisdiction without it. Bramlette v. State, 193 Miss. 24, 8 So.2d 234. The circuit court cannot retroactively bestow upon and borrow from the justice of the peace its jurisdiction. Bramlette v. State, supra. A justice of the peace is without authority to bind a defendant over to appear before the circuit court to await action of the grand jury on a charge of having committed a misdemeanor. A justice of the peace must finally dispose of misdemeanors where he has jurisdiction and not bind over the defendant. The action of the justice of the peace in this case, amounted to precisely the same thing as binding appellant over to await the action of the grand jury, just like his case was a felony, but his case was no felony, but the grand jury did act as though it was. It is too well settled, that a justice of the peace must dispose of misdemeanors where he has jurisdiction. Young v. State, 140 Miss. 165, 105 So. 461; Smith v. State, 86 Miss. 315, 38 So. 319. We cite these cases, not because the court is not perfectly familiar with them, but they are indirectly in point here, and to undertake to show this court, that the procedure and steps taken in appellant's case, before this justice amounted to and had the same procedure and the same effect, as though appellant was charged with a felony and not a misdemeanor. From the record in this case, it clearly shows that the case was dismissed for the purpose and intention of referring the matter to the grand jury of the county. The grand jury returned a true bill against him on precisely the same case and facts, just exactly like he had waived his trial in the justice court, and had given bond to await the action of the jury at the coming court term of the circuit court.
A justice of the peace having jurisdiction of a misdemeanor takes exclusive jurisdiction. Hampton v. State, 138 Miss. 196, 103 So. 101. It was said in the Hitt case, that a justice of the peace had jurisdiction of one charged with selling liquor and of subject matter where offense was misdemeanor and sentence was by fine and imprisonment in the county jail. Hitt v. State, 149 Miss. 718, 115 So. 879. It has also been said by our Supreme Court that "where a justice of the peace continues a criminal case to a definite date, the case cannot be dismissed in vacation without the consent of the defendant." Chandler v. State, 140 Miss. 524, 106 So. 265. Neither do we believe that an order can be entered on the justice docket in vacation after the court had adjourned dismissing the case "without prejudice to the State", and afterwards proceed against a defendant in the circuit court just like his case was only a felony, and too, in the absence of either the defendant or his counsel. The phrase "dismissed without prejudice to the State" clearly shows that it was the intion of appellee to then refer this same case with same facts and circumstances to the circuit court of the county for grand jury action, just like the case was a felony.
The State undertook to show the jury or bring out rather on cross-examination of appellant that he committed other and similar crimes distinct from and having no relation to or connection with the one with which he was then being tried. But that knowledge in the mind of the jury could possibly do him no good, and especially so, when they were trying him for the same kind of an offense. Augustine v. State, 201 Miss. 291. Appellant was asked the question by State's counsel: "Q. How many times have you been convicted or entered pleas of guilty to possession of whisky? A. I couldn't say. I guess the record will show about that."
As a general rule and principle of law a crime distinct from the one charged is inadmissible, and of course, should not be permitted into the evidence. Walker v. State, 201 Miss. 780. More especially so, when appellant had not undertaken to establish his good reputation in the trial. At common law the general character of the accused was free and immune from attack when he had not placed it in issue. Forman v. State, 190 Ala. 22, 67 So. 583. Again it is said that evidence tending to show the bad character of the accused is inadmissible, unless it is accompanied by other evidence in support of the charge. Lackner v. State, 15 Ala. 31, 72 So. 506. There are a great many authorities on this same point. It may be said of us that appellant was on cross-examination; even so, most certainly he could not be asked the above set-out question without it being harmful to him. Such question would have tendency to degrade or prejudice defendant as a witness in his own behalf before the jury. It most certainly had its effect in this case. It is almost a universal rule throughout the states (and we would not doubt that our court set the rule first, or among the first) that proof of other crimes is not permissible to show bad character, unless accused has placed his good character in evidence. Smothers v. Jackson, 92 Miss. 327, 45 So. 982.
George H. Ethridge, Assistant Attorney General, for appellee.
The appellant argues at great length that the indictment was void because of the filing of an affidavit in the justice of the peace court of Justice Dykes prior to the grand jury's finding of the indictment. I submit that the indictment was not subject to a motion to quash on said alleged ground but should have been made by plea to the jurisdiction if that defense should be raised at all. I further submit that when the grand jury found the indictment there was no affidavit pending in the justice of the peace court nor was there at any time in the justice of the peace court a trial on the merits. Under Section 22 of the State Constitution it is provided "but there must be an actual acquittal or conviction on the merits to bar another prosecution". It is therefore manifest that there is no merit on the contention that the affidavit was filed prior to the finding of the indictment and further contention that the court could not dismiss the prosecution without the defendant's consent. It does not appear that there was any objection to the dismissal of the suit in the justice of the peace court but it seems that the appellant thinks that the dismissal would have ended the prosecution altogether except for the words "dismissed without prejudice to the State". There being no acquittal or conviction before the justice of the peace, and the justice having dismissed the suit at the instance of the prosecution, no ground exists for quashing the indictment. The appellant did not have any vested right in a trial before the justice of the peace or in any other court having jurisdiction of the crime.
Pursuant to an indictment charging him with the unlawful possession of intoxicating liquor in the Second Judicial District of Jasper County, appellant was convicted. The indictment was returned by the grand jury on August 24, 1948.
Prior to the foregoing proceedings in the circuit court, appellant had been arrested on a warrant from the court of a justice of the peace, who had jurisdiction, for the same identical offense. Appellant, with his attorney, appeared in said latter court on June 26, 1948, ready for trial. The prosecution was represented by the county prosecuting attorney, who was also present. According to evidence in the record, at a time when both attorneys were present in open court, the county prosecuting attorney orally moved the justice court to dismiss the cause without prejudice to the State, and this motion was sustained. The judgment of the court was duly entered on the docket. According to the testimony of the appellant, he understood that the case was dismissed, after he announced ready for trial.
About two months later, as pointed out, supra, the circuit court convened, and indicted appellant for the identical crime involved in the foregoing proceedings in the court of the justice of the peace.
Thereupon, appellant filed a motion in the circuit court to quash the indictment. The grounds on which appellant relied were that the justice of the peace had complete and final jurisdiction; and that his action in dismissing the cause concluded the matter; and that he and his counsel were surprised later to learn that the dismissal was without prejudice to the State; — contrary to an alleged agreement between him and the county prosecuting attorney. Appellant further contended that he was entitled to a trial in the justice of the peace court, where he might have been acquitted, and denial thereof deprived him of his constitutional right to a trial, then and there.
The court heard appellant's witnesses on the motion, consisting of appellant himself and the justice of the peace. Neither witness testified that there was any such agreement as referred to in the motion. In overruling it, the circuit judge, among other things, said: "The motion (in the court of the justice of the peace) being sustained and order entered the case was dismissed, it being a regular court day and the regular place of holding court, and that both the state and defendant appearing, the state by counsel, and the defendant appearing in person on the day and in court, and by counsel, . . . there was no error in that proceeding . . ." Continuing, the circuit judge further said: "When it was dismissed, it was out of that court and was subject to investigation on the part of the grand jury."
Appellant's counsel, with commendable zeal, has cited a large number of cases, which he considers support his position that the circuit court was without jurisdiction to indict or convict and sentence appellant. The trouble is, these cases do not sustain his point. Bramlette v. State, 193 Miss. 24, 8 So.2d 234, was to the effect that on appeal from a justice court on a conviction upon an unsigned and unsworn affidavit, the circuit court could not authorize signing and swearing there, and thus retroactively acquire jurisdiction. Manifestly, that case has no application here. Young v. State, 140 Miss. 165, 105 So. 461, held that a justice of the peace has no authority to waive a trial for a misdemeanor, and bind the defendant over to await the action of the grand jury, unless the charge preferred may be punishable as a felony under certain conditions. And, also, that where a defendant is bound over to await the action of the grand jury, instead of being tried, a circuit court cannot proceed on the affidavit filed before the justice of the peace. In our opinion, there, we said: "There was no indictment by the grand jury, and the circuit court did not obtain jurisdiction of the offense by indictment."
In Smith v. State, 86 Miss. 315, 38 So. 319, cited also by appellant, we said that if an accused is charged before a justice of the peace with the commission of a misdemeanor, it is the duty of the justice of the peace to try and dispose of the case; and, if he fails to do so, and require the accused to give a bail bond to await the action of the grand jury on the misdemeanor charged, the bail bond will be void. This case is not pertinent to the issue before us.
The case at bar was dismissed without prejudice to the State. Appellant was not bound over to the grand jury. It will readily appear that the above typical cases cited by appellant are not in point.
On the contrary, Chandler v. State, 140 Miss. 524, 106 So. 265, dealing with the concurrent jurisdiction of misdemeanors in the circuit and justice of peace courts, announced (Hn 1) the rule to be that one of two courts of concurrent jurisdiction may, by valid order of dismissal, relinquish its exclusive jurisdiction acquired by criminal prosecution being first instituted therein, so that the other court may proceed then with prosecution of the same offense.
In the case of Smith v. State, 198 Miss. 788, 24 So.2d 85, we decided that the rule, that where concurrent jurisdiction is vested in two courts, the court first acquiring jurisdiction should proceed with trial and disposition, was intended to prevent conflicts in jurisdiction, and to prevent a person from being twice tried for the same offense, and that no defendant had a vested right to be tried in any particular court of concurrent jurisdiction. That case was one where, after the justice court had received an affidavit, but before a warrant thereon had been issued and the defendant arrested, he was indicted by the grand jury for the same offense charged in the affidavit. We held the circuit court had jurisdiction.
(Hn 2) We are of the opinion that the circuit court correctly retained jurisdiction in the case at bar, and that the indictment was valid.
Several other assignments of error have been orally argued and briefed, but we do not deem any of them of sufficient merit for discussion by us, except that we will refer briefly to appellant's contention that evidence of other separate crimes was introduced against him, over his objection. (Hn 3) Appellant was testifying in his own behalf, and on cross-examination was asked as to previous convictions, which he admitted. This testimony was not offered in support of appellant's guilt of the crime for which he was being tried, but as affecting his credibility, as a witness. This procedure was permissible, and we find no error therein.
The jury heard the case on conflicting testimony, and by their verdict accepted the evidence of the State as true. (Hn 4) Since we are unable to say that the verdict is manifestly wrong, or against the overwhelming weight of the evidence, we affirm the verdict and the judgment of the lower court based thereon.
Affirmed.