Henry v. State

• Decision Date: 31 October 1910
• Docket Number: 14,539
• Citation: 53 So. 397,97 Miss. 787
• Court: Mississippi Supreme Court
• Parties: NATIVE HENRY v. STATE OF MISSISSIPPI

53 So. 397

97 Miss. 787

NATIVE HENRY v. STATE OF MISSISSIPPI

No. 14,539

Supreme Court of Mississippi

October 31, 1910

FROM the circuit court of Union county, HON. WILLIAM A. ROANE Judge.

Henry appellant, was indicted for an assault and battery upon one Mittleburg West. He pleaded a former conviction, and supported his plea by the record of a prosecution for the same offense before a justice of the peace wherein he was convicted and fined. The affidavit upon which the justice of the peace judgment was rendered charged, omitting formal parts, "that Native Henry and Mittleburg West did commit an assault and battery on each other." The record of the justice of the peace failed to show that any witnesses were subpoenaed, appeared or testified. It did show, however, that defendant, Henry, was arrested, was in the justice court and pleaded guilty to the charge there made against him and was fined and paid the fine. The state did not show that the judgment of the justice of the peace was collusively obtained, or that it was fraudulent for any reason.

Reversed.

Flowers Fletcher & Whitfield and Stephens & Kennedy, for appellant.

The state's instruction proceeds upon the theory that a conviction is void unless subpoenas have been issued for witnesses. The instruction does not hint at fraud or collusion; it does not submit any question of fraud or collusion to the jury. It stands baldly upon the solitary proposition that in any criminal case before a justice of the peace, the whole proceeding is void unless subpoenas have been issued for witnesses.

We cannot think this view is sound. It is true that Code 1906 § 2750 provides that a justice upon the filing of an affidavit charging crime shall issue a warrant and also issue subpoenas for witnesses, but it is, to our mind, an astonishing proposition that a failure to subpoena witnesses deprives the court of jurisdiction. Suppose there are no absent witnesses. And, indeed, what is the need of witnesses, when the person for trial is ready to plead guilty? The learned assistant attorney general argues that because the statute directs the justice to issue subpoenas for witnesses, this becomes a jurisdictional prerequisite as much so as the filing of an affidavit charging crime. The fallacy of this contention is self evident. The filing of the affidavit is the beginning of the prosecution. Until this is done there is no case in court. But process for witnesses is but a step in the progress of the trial. It may or may not be necessary. In the case at bar, where the defendant wanted to plead guilty, there was no necessity for witnesses. They could not have been used had they been subpoenaed.

James R. McDowell, assistant attorney general, for appellee.

The state's instruction is based, of course, on section 2750, Code 1906, and the provisions of this section are mandatory and should be strictly observed by justices of the peace trying criminal offenses. Ou...