Bryant v. State

• Decision Date: 16 May 1927
• Docket Number: 26552
• Citation: 146 Miss. 533,112 So. 675
• Court: Mississippi Supreme Court
• Parties: BRYANT v. STATE. [*]

112 So. 675

146 Miss. 533

BRYANT v. STATE. ^[*]

No. 26552

Supreme Court of Mississippi

May 16, 1927

Division B

APPEAL from circuit court of Madison county HON. W. H. POTTER Judge.

Wash Bryant was convicted for hunting and killing squirrels during the closed season, and he appeals. Affirmed.

Affirmed.

Chas W. and John W. Crisler, for appellant.

The defendant was charged with violating the game laws, which under our statutes is a misdemeanor. Chapter 178, Laws of 1926, section 7, paragraph C. The charge as laid in the affidavit is, therefore, a misdemeanor and the statute intends the same to be triable by a justice of the peace as other misdemeanors are tried. Sections 2248, 2250 Hemingway's Code.

There is no statute in our state allowing a justice of the peace his costs or fees for sitting in the trial of a misdemeanor case unless the defendant is convicted and the costs assessed against said defendant. Chapter 165, Laws of 1922, section 1, paragraph X, is similar to section 2182, Code of 1906, paragraph (V), construed in Connerly v. Lincoln County, 99 Miss. 731, 55 So. 963.

This statutory allowance is, therefore, not applicable to misdemeanor cases and the only way in which a justice of the peace can derive payment of his costs in a misdemeanor case is by taxing the same against the defendant after conviction. Section 2256, Hemingway's Code. Chapter 43, section A, Laws of 1920, amends section 1892, Hemingway's Code, under paragraph E.

This statute fixes the per diem of a juror in the justice court but the same cannot be recovered and paid to the juror unless the defendant is convicted and the jury tax assessed against him together with the other costs. There is no provision for the payment of jury fees in a justice court out of the county treasury in event of an acquittal of the defendant. See, also, chapter 246, Laws of 1924, amendatory of section 69, Hemingway's Code.

We also refer the court to the Fourteenth Amendment to the United States Constitution, section 1, sub-section A thereof, providing: ". . . nor shall any state deprive any person of life, liberty, or property without due process of law; . . ." Section 14, article 3 of the Mississippi Constitution provides: "No person shall be deprived of life, liberty or property except by due process of law." See, also, section 171, Constitution of Mississippi and section 26.

Under these constitutional rights guaranteed to every citizen, it is impossible for any citizen to have his rights maintained in a trial before a justice of the peace or a jury, either one or both of them, having a pecuniary or monetary interest in the outcome of the case. The costs of the justice of the peace and the jury are not inconsequential but are a direct, personal, substantial pecuniary interest that the justice of the peace or the jury have in the conclusion of the case. Tumey v. State of Ohio, 47 S.Ct. 437, 71 L.Ed. 544, recently decided by the supreme court of the United States, is the case on which we rely for a reversal.

If on account of the interest of the justice of the peace, he is disqualified to try a defendant in a criminal proceeding before him, then the circuit court to which he appealed from a conviction therein, would have no jurisdiction to try his cause, even de novo, for the circuit court can acquire only such jurisdiction as is vested in the justice of the peace from whose court the appeal is prosecuted. This is a rule of law as laid down by this court and is indisputable. Glass v. Moss, 1 How. 519; Crapoo v. Town of Grand Gulf, 9 S. & M. 205; Stier v. Surget, 10 S. & M. 154; Scofield v. Pensons, 26 Miss. 402; Switzer v. Burner, 48 So. 401.

In the case at bar the state has sought to deprive the defendant of his liberty and property without due process of law. We believe that the procedure of the justice of the peace courts in this state is condemned in the Tumey case, supra, on which case we frankly rely for a reversal. The demurrer of the state should have been overruled.

Rush H. Knox, Attorney-General, for the state.

The plea in abatement is fatally defective and the demurrer thereto was properly sustained because it is not alleged in said plea that the defendant objected to the justice of the peace trying said cause on the ground of his disqualification by reason of his being interested in the outcome of the case. See sections 165 and 171 of the Constitution of Mississippi.

This court has construed these sections several times and has consistently held that a justice of the peace or a judge is disqualified from hearing a cause in which he may be interested. However, it has also held that the disqualification may be waived and that it is impliedly waived by the failure to object at the trial, and that it may be waived even though the party at the time did not know of the disqualification. Nimocks v. McGehee, 97 Miss. 321; R. R. Co. v. Kirk, 102 Miss. 41; Shireman v. Wildberger, 125 Miss. 449; Dixon, Sheriff, v. Rowland, 108 So. 807.

The plea in abatement in this case does not allege that the defendant made any objection to the justice of the peace trying his case until after the cause was appealed to the circuit court. He cannot now complain of the disqualification of the justice of the peace.

In Tumey v. State of Ohio, recently decided by the supreme court of the United States, the facts show that Tumey objected to the mayor trying the case on the ground that he was financially interested in the outcome of the case, and that he made this objection in each court thereafter. The supreme court of the United States stated these facts with great particularity and emphasized the fact that the defendant did seasonably object.

Counsel for appellant confuses "the jurisdiction of the court" with the "qualification of the judge." The fact that a judge may be disqualified by reason of his interest to try a particular case does not affect the jurisdiction of the court. In other words, a circuit judge may be disqualified to try a case because he was interested financially in the outcome of the case. However, the circuit court of which he is judge would have jurisdiction to try the case. The disqualification of the judge is not a jurisdictional fact.

The questions argued by appellant are not presented by the record in this cause.

John W. and Chas. W. Crisler, in reply, for appellant.

We cannot see the expediency or necessity of raising a formal objection to the justice of the peace trying the case when the justice court is not a court of record and proceedings therein are tried only in a summary way, nor do we see the necessity of raising an objection before a justice of the peace who is interested in the outcome of the cause, when the justice of the peace, if interested in the outcome of the cause to the extent that he might find the defendant guilty on the facts in the case, is certainly interested to the extent that any motion as to his disqualification would be promptly overruled. Besides, we do not contend that the justice of the peace is disqualified as a matter of fact. As said in the Tumey case, "It certainly violates the Fourteenth Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him." When the defendant is called for trial and forced to come into court, his liberty, or property, is then and there being subjected to the judgment of a court having this interest. We believe that this condition exists at the very time that the warrant is served on the defendant after having been issued by the justice of the peace.

The fact that the case is tried de novo in the circuit court on appeal and the same defenses exist therein as existed in the justice of the peace court indicate that the objection raised by the plea in abatement was raised at a...