Opinion
No. 33992.
March 4, 1940. Suggestion of Error Overruled April 29, 1940.
1. CRIMINAL LAW.
Where defendant was indicted at special term of circuit court for unlawfully possessing intoxicating liquors while the same charge was pending before a justice of the peace, justice undertook to dismiss charge on a day other than a regular term, and circuit court thereafter quashed indictment on ground that case had not been legally dismissed in justice court, justice had right to dismiss case at next regular term of court, and having done so, defendant could not complain of being again indicted at term of circuit court for same offense.
2. CRIMINAL LAW.
The rule that where concurrent jurisdiction is vested in two courts, the court first acquiring jurisdiction should proceed with trial and disposition of case is intended to prevent confusion and conflicts in jurisdiction, and to prevent a person from being twice tried for the same offense, and no defendant has the vested right to be tried in any particular court of concurrent jurisdiction.
3. INTOXICATING LIQUORS.
Whether defendant was guilty of unlawfully possessing intoxicating liquors was for jury under conflicting evidence.
APPEAL from the circuit court of Simpson county; HON. EDGAR M. LANE, Judge.
D.A. McLeod, of Mount Olive, and R.L. Calhoun, of Collins, for appellant.
The court below erred in refusing to grant appellant a new trial on the ground that the verdict of the jury was against the overwhelming weight of the testimony.
Appellant contends that the court below erred in taking jurisdiction to try this cause while the same cause was pending in the Justice of the Peace Court of District No. 2 of Simpson County, Mississippi, a court of concurrent jurisdiction with the circuit court of said county, to try said cause; said cause being pending in said justice court at the time the indictment was returned against the defendant below and at the time of his trial; and the court below had no jurisdiction to try same at that time.
Appellant contends that the justice of the peace court, after it had once taken jurisdiction of this cause, which was a misdemeanor, had the exclusive jurisdiction to dispose of same, and that said cause could not be dismissed by said justice of the peace court without knowledge or consent of appellant.
Coleman v. State (Miss.), 35 So. 937; State v. Hughes (Miss.), 51 So. 464; State v. Milano (La.), 71 So. 131; Atkinson et al. v. State (Miss.), 96 So. 310.
W.D. Conn, Jr., Assistant Attorney General, for the state.
The trial judge heard evidence on the motion to quash and adjudged that at the time the grand jury returned the indictment there was no prosecution pending against appellant on this charge in the justice court and that, therefore, the circuit court had jurisdiction to try appellant for this offense.
Rodgers v. State, 101 Miss. 847, 58 So. 536; Haney v. State, 146 Miss. 808, 112 So. 19.
This case presents, as we think, and out and out conflict as between the witnesses for the state and the defendant.
Appellant testified that he let a Frenchman, Hodie, have his car on the night in question, but it clearly appears that such person, Hodie, was very much smaller than appellant and had a very dark complexion, whereas appellant was possessed of a light complexion. The contrast was such as to show that the officers, who had known appellant for years, could not have been mistaken in their identification of appellant.
The positive and unequivocal testimony of these state witnesses in identifying appellant was sufficient, as we think, to sustain his conviction, and the court, therefore, overruled this motion for a new trial.
Coleman v. State, 155 Miss. 482, 124 So. 652; Bryant v. State (Miss.), 157 So. 346; Roberds v. State (Miss.), 187 So. 755.
It might be further added that since this was a straight out case of a jury's verdict being returned on conflicting evidence, the court would not be authorized to set aside the verdict returned in this case.
Evans v. State, 159 Miss. 561, 132 So. 563.
It appears that an affidavit was made on the 24th day of October, 1938, before A.A. Runnels, a justice of the peace in Simpson County, charging the appellant with the unlawful possession of intoxicating liquors. Thereupon a warrant for his arrest was issued and served, and the appellant was placed under bond for his appearance to answer the charge made against him in the said affidavit. The case was continued for one reason or another at two or three terms of the justice of the peace court, and while the same was still pending there was a special term of the circuit court convened and held beginning on the first Monday of December, 1938, when an indictment as returned charging the appellant with the same offense with which he was charged in the affidavit. The justice of the peace, on a day other than a regular term of his court, undertook to dismiss the charge pending therein. Thereafter upon motion of the appellant, the circuit court quashed the indictment on the ground that the case had not been legally dismissed in the justice of the peace court, and that the jurisdiction acquired first of the case still prevailed. At the next regular term of the justice of the peace court, which was held on the 14th day of January, 1939, the sheriff and chief prosecuting witness appeared and requested that the case be dismissed without prejudice after the appellant had been called and failed to appear. A judgment of dismissal was accordingly entered. At the March, 1939, Term of the circuit court, the appellant was again indicted for the same offense and he again moved to quash the indictment on the ground that the prosecution in the justice of the peace court had been dismissed without his knowledge or consent and was therefore still pending so as to deprive the circuit court of jurisdiction of the case. This motion was overruled and appellant was tried and convicted under this second indictment. From that conviction he has taken this appeal.
Under conflicting evidence in that behalf we are of the opinion that the circuit court was justified in holding that the case was subject to trial on the 14th day of January, 1939, when the same was dismissed in the justice of the peace court. In other words, it was not dismissed in advance of a definite date set for the trial as was done in the case of Chandler v. State, 140 Miss. 524, 106 So. 265. Under the authority of the case of Rodgers v. State, 101 Miss. 847, 58 So. 536, the justice of the peace had a right to dismiss the case and having done so the appellant had no cause to complain, nor did he complain so far as the record discloses until he had again been indicted in the circuit court. As was said in the Rodgers case, supra, the reason of the rule which renders it proper where concurrent jurisdiction is vested in two courts that the court first acquiring jurisdiction proceed with the trial and disposition of the case is to prevent confusion and conflicts in jurisdiction and to prevent a person from being twice tried for the same offense, but no defendant has the vested right to be tried in any particular court of concurrent jurisdiction. The decision of the case at bar is controlled by the principles announced in that case.
It is next urged that the appellant is entitled to a reversal because the conviction is contrary to the overwhelming weight of the evidence. The sheriff had received information that the appellant would appear at "Vardaman Smith's Place" carrying intoxicating liquors on a certain night, in an automobile bearing an Arkansas license tag of a specified number, and he testified that he went to this place and waited until the appellant arrived, saw him unload the liquor and followed the same car to the appellant's home. He was corroborated in this testimony by a deputy. On the other hand, appellant offered a number of witnesses to establish an alibi. The issue was properly submitted to the jury under correct instructions on this conflicting testimony, and we are not warranted in disturbing the verdict of conviction.
Affirmed.