Brown v. State

Decision Date20 March 1909
Citation118 S.W. 139
PartiesBROWN v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Fannin County; Ben H. Denton, Judge.

Simon Brown was convicted of perjury, and appeals. Reversed and remanded.

E. L. Agnew and McGrady & McMahon, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.


This conviction was for perjury, the punishment assessed being three years' confinement in the penitentiary.

The evidence shows that on December 3, 1906, G. W. King was justice of the peace of precinct No. 3 of Fannin county, and that he, together with the assistant county attorney, sheriff, with deputies, and the county attorney of Lamar county, went into justice precinct No. 4 of said Fannin county, where there was a resident qualified justice of the peace, and that said King issued subpœnas for witnesses, under authority of article 941 of the Code of Criminal Procedure of 1895, and had said witnesses brought before him for the purpose of inquiring into violations of the law. While testifying before said King, appellant stated, "I never saw any card playing or craps in any room above Jim Lewis' frosty joint, and I have not seen a game of poker or crap game around or in Ladonia for three or four years, at least; it has been more than one year." Perjury was assigned against appellant upon his testimony before said King. As above stated, the evidence is that King was the duly elected and qualified justice of the peace in precinct No. 3; that he went into precinct No. 4, where there was a resident qualified justice of the peace, and held a court of inquiry, and it is further shown that the justice of precinct No. 4 was in no way disqualified from holding said court of inquiry, or sitting in regard to these matters. The commissioners' court had designated Ladonia as the seat of justice, or place for holding the justice court for said precinct No. 4.

Appellant was brought before said King by a deputy sheriff, and held in custody from the time he was supposed to have been summoned before said King until indicted by the grand jury. The contention is made that King, as justice of the peace, had no jurisdiction or authority to act as justice of the peace, or preside as such over a court of inquiry in precinct No. 4, inasmuch as there was a resident justice of the peace, who was a qualified justice of precinct No. 4, and was in no way disqualified to act in such investigation. We are of opinion this contention is sound. A justice of the peace has no authority as such to act out of his precinct, and in the precinct of another justice of the peace. Article 5, §§ 18, 19, of the Constitution provide there shall be not less than four, nor more than eight, justices of the peace in and for each organized county in this state, unless there should be a city of 8,000 or more inhabitants, in which case there may be two justices elected for such city. It further provides that the county court then in existence should make the first division, and all subsequent divisions should be made by the commissioners' court, as provided by the Constitution. Further provisions of the Constitution provide for the jurisdiction, criminal and civil, of such justices of the peace, and that they shall hold their courts at such times and places as may be provided by law. In obedience to these provisions of the Constitution the Legislature provided, among other things, for the election of justices of the peace in these respective justice precincts, and to fill vacancies in case of such occurrence. Article 1564 of the Revised Statutes of 1895 provides: "Each justice of the peace shall be commissioned as justice of the peace of his precinct and ex-officio notary public of his county, and shall take the oath of office prescribed in the Constitution, and give the bond prescribed by law." Article 1565 provides: "Where any vacancy shall occur in the office of a justice of the peace, the same shall be filled by some person appointed by the commissioners' court of the county, who shall hold his office until the next general election, and until his successor shall be elected and qualified." Article 1566 provides: "During the period of such vacancy, or whenever the justice of the peace in any precinct shall be absent, or unable or unwilling to perform the duties of his office, the nearest justice of the peace in the county may perform the duties of the office until such vacancy shall be filled, or such absence, inability or unwillingness shall cease." This seems to be the extent of the law with reference to the authority of the justice of the peace as enacted by the Legislature, except as coroner and magistrate. Article 941 of the Code of Criminal Procedure is in the following language: "When a justice of the peace has good cause to believe that an offense has been, or is about to be committed against the laws of this state, he may summon all and examine any witness or witnesses, in relation thereto; and if it shall appear from the statement of any witness or witnesses that an offense has been committed, the justice shall reduce said statements to writing, and cause the same to be sworn to by the witness or witnesses making the same, and thereupon such justice shall issue a warrant for the arrest of the offender, the same as if complaint had been made out and filed against each offender." These are the provisions in the Constitution and statutory enactments in regard to the power and jurisdiction and authority of justices of the peace. It is a well-settled proposition that the jurisdiction and power and authority of justices of the peace are such only as are fixed by the Constitution and statutes. In some of the states their jurisdiction is coextensive with the limits of their respective counties, while in others it is confined to their townships, district, wards, precincts, or hundreds, and it is a general rule that any exercise of jurisdiction by a justice of the peace beyond his prescribed power is coram non judice and void. See Dew v. State Bank, 9 Ala. 323; Caldwell v. Meador, 4 Ala. 755; Gage v. Maschmeyer, 72 Iowa, 696, 34 N. W. 482; State v. Brayman, 35 Kan. 714, 12 Pac. 111; Russell v. Muldraugh's Hill, etc., 13 Bush (Ky.) 307; Hebel v. Amazon Insurance Co., 33 Mich. 400; Hartford F. Insurance Co. v. Owen, 30 Mich. 441; U. S. Mutual Ins. Co. v. Reisinger, 43 Mo. App. 571; People v. Campbell, 22 Hun, 574; Sear v. Shanks, 9 N. D. 204, 82 N. W. 734; Neville v. Morgan, 10 Phila. (Pa.) 522; Leadbetter v. Kendall, Fed. Cas. No. 8,157a; The Martha Anne, Fed. Cas. No. 9,146, Olc. 18. See, also, 24 Cyc. 484, 485. The same rule obtains in this state. See Foster v. McAdams, 9 Tex. 542. See, also, Crawford v. Saunders, 9 Tex. Civ. App. 225, 29 S. W. 102; Horan v. Wahrenberger, 9 Tex. 313, 58 Am. Dec. 145; Stewart v. Smallwood (Tex. Civ. App.) 102 S. W. 159; and Peacock v. State, 37 Tex. Cr. R. 418, 35 S. W. 964. The justice has also authority to sit as a magistrate, but this is entirely distinct from his jurisdiction as justice of the peace. Code Cr. Proc. arts. 41, 62; Kerry v. State, 17 Tex. App. 178, 50 Am. Rep. 122.

Another proposition is that ordinarily one justice has no authority to take cognizance of proceedings within the jurisdiction of another justice; but in some states other justices, usually the nearest, are given jurisdiction over proceedings within the jurisdiction of another justice who has resigned or is disqualified, absent, or is some way legally disabled; but these statutes are to be strictly construed, and will not be extended to cases clearly not within their terms, and where by statute certain proceedings must be had before a proper justice, no other justice can take jurisdiction. See 24 Cyc. 493, and notes 85, 86, 87, and 88, for collated authorities. It is also settled that one justice of the peace, as such, cannot sit in the precinct of another justice, even when the other justice is absent. See Stewart v. Smallwood (Tex. Civ. App.) 102 S. W. 159. In no case can he take jurisdiction or cognizance of matters arising in another precinct where there is a resident justice of the peace capable of acting. Stewart v. Smallwood, supra; Horan v. Wahrenberger, supra; Moss v. State, 83 S. W. 829, 11 Tex. Ct. Rep. 763; Pyles v. State, 83 S. W. 811, 11 Tex. Ct. Rep. 732; Liggett v. State, 83 S. W. 807, 11 Tex. Ct. Rep. 764; Wilson v. State, 27 Tex. App. 47, 10 S. W. 749, 11 Am. St. Rep. 180. The three cases, supra, cited from the Texas Court Reporter arose in regard to whether the jurisdiction of the mayor's authority extended beyond his territorial limits. It was held where the case arose outside such limits, perjury assigned upon testimony delivered during the trial before the mayor could not afford the basis of a prosecution because of want of jurisdiction on the part of said officer to try such cases; that his action was coram non judice. The latest utterance in regard to this matter is the case of Stewart v. Smallwood, supra. We quote from that case: "It is not disputed that John Fitzgerald, justice of the peace for precinct No. 1 of Fannin county, was absent at the time of filing this suit, and the issuance of the writ of attachment, and that T. J. Self, the justice of the peace of precinct No. 8, was the nearest justice of the peace in Fannin county. It is contended in argument that, when the justice of the peace is absent from his precinct, the nearest justice in the county has jurisdiction of all the cases which may be brought in the precinct of such absent justice, but such nearest justice cannot go out of his precinct and issue process, and make the same returnable to the court of the absent justice, but should make the same returnable to the court of said nearest justice of the peace; in other words, that there is no law authorizing a justice of the peace to go out of his precinct and issue process in another jurisdiction and make it returnable to that jurisdiction. We are of opinion that the...

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