Clepper v. State

• Decision Date: 31 December 1849
• Citation: 4 Tex. 242
• Parties: CLEPPER v. THE STATE.
• Court: Texas Supreme Court

4 Tex. 242

CLEPPER

v.THE STATE.

Supreme Court of Texas.

December Term, 1849.

That part of the Constitution which gives original jurisdiction in criminal cases to the District Courts does not restrain the Legislature from giving concurrent jurisdiction to justices of the peace.

Where two courts have concurrent jurisdiction, the one which takes the first step is entitled to go on to judgment.

The word “information” in 8th section of the bill of rights implies no particular form; it requires nothing more than that the accused shall be informed therein of the nature of the offense of which he is charged; and this requisition is fully answered by the warrant on which he is brought before the justice for trial.

The plea of a former conviction before a justice of the peace is a bar to an indictment for the same offense in the District Court in cases where a justice has jurisdiction finally to try.

It is a rule in civil cases, and we see no reason why it should not be extended to criminal cases, that where a plea is pronounced bad on demurrer, the defendant is allowed to plead over.

Appeal from Walker. The indictment in this case contained two counts, the first for an assault with a deadly weapon, with an intent to commit murder, and the second for an assault and battery.

The defendant to the first count pleaded not guilty. To the second he pleaded a former conviction and judgment for the same offense before a justice of the peace, and satisfaction of that judgment.

To the second plea the district attorney filed a demurrer, which was sustained by the court, and the defendant asked leave to plead over, but was refused permission to do so. A jury was impaneled to try the issue on the first count and to assess the fine on the second. The jury returned a verdict of not guilty on the first count, and assessed the fine at $25 on the second count, for which judgment was awarded. The defendant appealed.

The errors assigned, 1st. That the court erred in sustaining the demurrer to the plea to the second count. 2d. The court erred in refusing to permit the defendant to plead over after sustaining the demurrer to his plea of a former conviction.J. B. Jones, for appellant. The demurrer was sustained on the ground that the statute giving jurisdiction to justices of the peace is unconstitutional, in the opinion of the judge below, conflicting with the 8th section of the bill of rights, and the 10th section of the 4th article, as expounded by the court in Aulanier v. The State.

Appellant suggests that the provisions of the 8th section of the bill of rights were introduced for the protection of the citizen, and it is for him to invoke their aid; that the passage of the act giving jurisdiction to justices of the peace was the act of the State; his conviction under it, before the justice, was at the instance of the State; and the fine has gone to the benefit of the State. Would it not be a worse evil than those provided against for the State now to repudiate her own act, merely for the purpose of collecting another fine from him for the same offense. The grant of this jurisdiction is expressly recognized by the Constitution. (Art. 4, sec. 17.)

Whatever may be the ruling of this court upon the constitutional question presented by the demurrer to the plea, they cannot affirm the ruling of the court in refusing the defendant the privilege of pleading over. There may be some dicta found in the old English black-letter law to support the decision of the court below, but even in that age the court had a discretion to allow or not. But the time has long since passed when a man could be deprived of his life, liberty, or property by the State in a public prosecution merely because he happens to mistake some one of the technical rules of common-law pleading.

LIPSCOMB, J.

This case having been submitted by the appellant when it was reached on the docket, and at that time there being no person authorized to represent the State, we have to dispose of it without the assistance of either argument or brief on the side of the State, and consequently are not apprised of the ground on which the court below rested its decision. It is presumed, however, from the appellant's brief that the court believed that the act of the Legislature giving jurisdiction to justices of the peace in cases of this kind was repugnant to the Constitution of the State. We will proceed, then, to investigate that question.

The last paragraph of the 8th section of the bill of rights is as follows: “And no person shall be holden to answer for any criminal charge but on indictment or on information, except in cases arising in the land or naval forces, or offenses against the laws regulating the militia.” The first part of the 10th section of the judicial department is as follows: “The District Court shall have original jurisdiction of all criminal cases,” &c. And the 17th section is as follows: “Justices of the peace shall have such civil and criminal jurisdiction as shall be provided for by law.” The 5th section of the act of the Legislature to organize Justice's Courts and define the powers and jurisdiction of the same is in the following words: “That any justice of the peace shall by warrant under his hand cause any person or persons charged on oath, or which may come to his knowledge by view or confession, of having been guilty of breach of the peace, assault and battery, assaults, riots, and affrays, to be brought before him for trial, and if found guilty, shall proceed to collect such fine as may be assessed, not...