Bass v. State

• Decision Date: 12 January 1931
• Docket Number: 29012
• Citation: 131 So. 830,159 Miss. 132
• Court: Mississippi Supreme Court
• Parties: BASS v. STATE

131 So. 830

159 Miss. 132

BASS v. STATE

No. 29012

Supreme Court of Mississippi

January 12, 1931

Division B

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.

HON. J Q. LANGSTON, Judge.

APPEAL from circuit court of Marion county, HON. J. Q. LANGSTON Judge.

Coy Bass was convicted for unlawful possession of intoxicating liquor, and he appeals. Judgment reversed, indictment quashed, and defendant discharged.

Judgment reversed.

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.

OPINION

Griffith, J.

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...