Chandler v. State
| Decision Date | 07 December 1925 |
| Docket Number | 25064,24627 |
| Citation | 140 Miss. 524,106 So. 265 |
| Court | Mississippi Supreme Court |
| Parties | CHANDLER v. STATE. [*] MATHIS v. SAME |
MATHIS v. SAME. (Division A.)
1. CRIMINAL LAW. Court first acquiring exclusive jurisdiction may relinquish it by valid order of dismissal.
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 then proceed with prosecution of the same offense instituted therein before such order.
2. CRIMINAL LAW. Justice court without authority to enter order of dismissal in criminal case, after continuance of case to definite subsequent date.
Under Constitution 1890, section 171, and Code 1906, section 2749 (Hemingway's Code, section 2248), as to jurisdiction and authority of Justice of peace court in criminal cases, after justice continues case to a definite date, and defendant is discharged till then, court is in effect in vacation, and cannot enter valid order of dismissal, without defendant's consent.
3. CRIMINAL LAW. Discharging jury and continuing case not sufficient for former jeopardy.
In view of Constitution 1890, section 22, requiring actual acquittal or conviction on the merits to bar another prosecution, plea of autrefois acquit was not sustained by fact that after jury had been qualified, but before it had been accepted by both parties, justice of peace discharged jury and continued case to later date.
In No. 24627:
In No 24627:
APPEAL from circuit court of Clay county, HON. J. I. STURDIVANT Judge.
In No 25064:
Appeal from circuit court of Benton county.
HON. THOS. E. PEGRAM, Judge.
Cora Chandler and Will Mathis were convicted of unlawful possession of liquor, and they appeal. The conviction of Cora Chandler was affirmed, and she filed a suggestion of error. Sustained. Both cases reversed and remanded.
Reversed and remanded.
B. H. Loving, for appellant, Cora Chandler, on suggestion of error.
The circuit court had no jurisdiction of this case. The uncontradicted evidence shows that prior to the finding of this indictment a prosecution for this same offense was commenced in justice court and that also, prior to such time that a term of such justice court was held wherein this case was taken up and that at such time and term of justice court that the case therein was set for trial on October 24, 1924, by agreement of all of the parties, by an order of such justice court, and that thereupon such justice court adjourned and appellant was discharged until October 24, 1924; and that after the finding of the indictment in circuit court, that on October 2, 1924, the county attorney called said justice of the peace over the telephone and requested him to dismiss the said prosecution in his court, and that thereupon said justice of the peace did enter an order on his docket dismissing the case at the request of the county attorney and that neither appellant, or her counsel, then appeared in such justice court, or were in such justice court, and that they were not consulted about the same, and did not agree to it. This evidence follows a plea of appellant to the jurisdiction of the circuit court.
Appellant contends that the magistrate had no right under the undisputed facts, as shown by the evidence, to dismiss the prosecution in his court, or to take any action whatsoever in the matter until the day arrived to which he had continued the case, to-wit: October 24, 1924, and that his attempted dismissal prior to that time, without the agreement of appellant, and without notice to her, was void, and was no dismissal.
The attorney-general says that as the docket of the justice of the peace in this case did not show the continuance and the setting of the cause for a particular date, but did show that the cause stood dismissed, that the same is conclusive against our contention.
But under decisions of this court the mere failure of the justice of the peace to perform the mere clerical duty of entering the order of continuance, and of a setting of the case for trial, as aforesaid, on his docket, did not render the same void. Lurenberger v. State, 74 Miss. 379, 21 So. 134; Holley v. State, 74 Miss. 878, 21 So. 923.
The attempted dismissal of the prior prosecution for the same offense in the justice court was void and the cause is still pending there.
Harry M. Bryan, assistant attorney-general, for the state, in reply to suggestion of error.
Under section 171 of the Constitution, justices of the peace are given concurrent jurisdiction over misdemeanors with the circuit courts. Of course, it is not the sense of this section that actions may be pending in both at the same time concerning the same subject-matter. This leads us to the question as to what harm could follow from a dismissal in the justice court, in the absence of fraud? So long as the appellant is not endangered by being subjected to double jeopardy can he complain of a voluntary dismissal? The theory of dismissals is that they are favorable to defendants charged with crime. Therefore, the conclusion is inescapable that in order to reverse this case it will be necessary to determine that such dismissal materially injured appellant and was an invasion of her rights.
The regular court terms of justices of the peace have no application to criminal matters which may be heard and determined at any time. The justice of the peace who tried this cause testified that his docket did not show that the cause was triable on a particular day, by agreement or otherwise. His docket did show that at the time of the trial of this cause in the circuit court it stood dismissed with him. If appellant feels that she might be twice placed in jeopardy for the same offense she could plead her conviction in the circuit court, in bar, in case the matter should come before the justice of the peace at any future time that the record shows that the dismissal took place before the time of the indictment.
The authorities are agreed that the dismissal of a criminal case does not work to the prejudice of the defendant unless and until the jury to try the case at least, has been empanelled and sworn. There are various stages after the empanelling and swearing of the jury which mark the dividing line as between prejudice and harmless action, according to the different state courts of last resort. See 16 C. J. 433.
The dismissal of the case against appellant, in the justice court, was not to her prejudice and therefore not an act of which she can complain. Clarke v. State, 23 Miss. 261.
We can see no distinction between the power to enter a nolle prosequi in cases pending in the circuit court and dismissals in cases pending in courts of justices of the peace. There being no act therefore of which appellant could complain and the circuit court in this case having full and complete jurisdiction, the suggestion of error should be overruled.
L. A. Smith, for appellant, Will Mathis.
The Constitution of the United States provides--"nor shall any one for the same offense be twice put in jeopardy for life or limb." And this provision is binding on the courts of the state of Mississippi, as being the paramount law. State v. Moor, Walker 134, 1 Mor. State Cases, 13, 12 Am. Dec. 541n.
Section 22 of the Constitution of the state provides that "no person's life or liberty shall be twice placed in jeopardy for the same offense; provided there must be an actual acquittal or conviction on the merits to bar another prosecution."
It is the contention of appellant that these two sections mean the same thing, or, if not, that the Constitution of the state of Mississippi, where antagonistic to that of the United States, must yield to it in this case, and that the provision in the state Constitution which might seem to be a limitation on the provision of the Federal Constitution is not so in fact, but refers to those instances in a trial when a mistrial has to be entered on account of a disagreement, or when a jury has to be discharged before reaching a verdict because of the end of the term, or for some other reason of necessity.
See section 2716, Code of 1906, section 2209, Hemingway's Code, where it is provided: "A challenge to the array shall not be sustained, except for fraud, nor shall any venire facias in a criminal case, be quashed from any cause whatsoever." This means actual fraud. Cook v. State, 90 Miss. 137, 43 So. 618.
That the action of the magistrate in sustaining the motion of the county attorney to discharge the entire jury on his challenge to the array, after it had been accepted by both the state and defense for cause violated above statute is manifest.
In a justice of the peace court it was virtually quashing the venire facias, which is prohibited by the statute also. The courts never have possessed this right in Mississippi, and it would shock our sense of the wisdom and the humanity and love of liberty we ascribe to our fathers if we construed the above section of the Constitution to give the courts such power. Teat v. State, 53 Miss. 439.
A party is placed in jeopardy whenever, upon a valid indictment, in a court of competent jurisdiction, and before a legally constituted jury, his trial has been fairly entered upon; and if thereafter the jury is illegally, improperly, and unnecessarily discharged by the judge, it operates as an acquittal, so that he cannot ever afterward be arraigned again for the same offense. Price's case, 36 Miss. 531 (72 Am. Dec. 195); Josephine's case, 39 Miss. 613; Holley v. State, 74 Miss. 878, 21 So. 923; Helm v. State, 66 Miss. 537, 6 So. 322.
Having been acquitted in the court of the justice of the peace on...
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