Martin v. State

• Decision Date: 09 December 1940
• Docket Number: 34168
• Citation: 199 So. 98,190 Miss. 32
• Court: Mississippi Supreme Court
• Parties: MARTIN et al. v. STATE

199 So. 98

190 Miss. 32

MARTIN et al. v. STATE

No. 34168

Supreme Court of Mississippi

December 9, 1940

APPEAL from the circuit court of Smith county, HON. EDGAR M. LANE Judge.

Proceeding on a bail bond by the State against R. C. Martin and others. From a judgment making final a judgment nisi on the bail bond, R. C. Martin and others appeal. Reversed and judgment nisi set aside, and proceeding dismissed.

Judgment reversed; set aside, and proceeding dismissed.

Hilton & Kendall, of Jackson, for appellants.

In the State of Mississippi, the clerk of the circuit court is not a conservator of the peace and has no power to take criminal affidavits and issue warrants thereon. Sections 1320 and 740 of the Mississippi Code of 1930 designate the conservators of the peace and define their duties. It is provided by these sections that the judges of the supreme, circuit, chancery and county courts and all justices of the peace are conservators of the peace.

Section 1320 provides that any conservator of the peace has the power to take all manner of bonds and recognizances from persons charged on affidavit with crimes.

It is provided by Section 1249 of the Code of 1930 that all justices of the peace and all other conservators of the peace are authorized to take recognizance or bond of a person charged with any offense for which bond is allowed by law. Section 1242 provides that when a defendant shall be committed to jail for default in giving bond, the committing officer shall state in the mittimus the amount of bail and the number of sureties required and shall direct the sheriff to release the prisoner upon his entering into bail as specified in the order. And by the terms of Section 1243, it is made the duty of the sheriff to approve the sureties on the bond and to release the defendant upon his compliance with the committing order.

Therefore we see that the circuit clerk, under our system of jurisprudence, has no power to act as a conservator of the peace, to take criminal affidavits, to issue warrants or to fix the amount of or approve a bond or recognizance. Nor is the sheriff vested with the authority to determine whether or not a defendant is entitled to bail, the amount of the bail, the number of sureties, etc. He can only approve a bond after the amount has been fixed by the committing officer, and this committing officer must be a conservator of the peace--not a circuit clerk. Even had the instanta writ issued by the clerk been valid, the only thing that the sheriff could legally do was to execute said writ, according to its terms, and bring the defendant before the circuit court immediately. His acceptance of bail in this case was wholly void and unauthorized.

Therefore, we see that the entire procedure in this case finds no authorization or basis in law. The circuit clerk attempted to usurp powers which the laws of our state deny him, and the sheriff likewise attempted to clothe himself with authority which our lawmakers have seen fit to withhold from him. The entire proceeding, in its inception and its culmination, was a complete nullity and is of no effect, and the sureties who were sought to be charged cannot be held upon such a bond given in this manner. The affidavit by the district attorney was void, the warrant issued by the clerk was void, the bond or recognizance was void, and all further proceedings, including the final judgment, were likewise void.

We realize that Section 1246 of the Code of 1930 provides that any bond or reconizance shall be valid which serves to obtain the release of any party, whether it was taken by the proper officer or under circumstances authorized by law or not. However, this Section will not avail in a case where the bond was taken in a manner and in a proceeding unknown to law, and there was an absolute and complete want of power to take any such bond.

Smith v. State, 86 Miss. 315, 38 So. 319.

W. D. Conn, Jr., Assistant Attorney-General, for appellee.

Appellee does not desire to file a brief in reply to that filed by appellants. It appears to us from a study of the record that appellants' position is sound. We therefore submit this case on the record and brief filed by appellants.

Smith, C. J., Ethridge, J., dissenting.

OPINION

Smith, C. J.

This is an appeal from a judgment making final a judgment nisi on a bail bond.

An affidavit charging Martin with the commission of a felony was made and lodged with the Clerk of the Circuit Court of Smith County, who issued a warrant thereon for the arrest of Martin, returnable instanter before the Judge of the Circuit Court of Smith County "at my office at Raleigh in said county and state." The sheriff of the county arrested Martin on this warrant and admitted him to bail, the bond therefor requiring him "to appear before the circuit court of Smith County, in said state, instanter, to answer the charge, " etc. Ten days thereafter a judgment was rendered by the circuit judge reciting that Martin had failed to appear, awarding the State a recovery on the bond, and directing that the sureties thereon be summoned to appear and show cause why the judgment should not be made final. The sureties appeared at a later term of the court, and, over their protest, the judgment nisi was made final.

Several questions are presented by the record, error in all of which is admitted by the Assistant Attorney General. At least one of these questions, which as hereinafter appears, must be decided in the appellant's favor and will require a judgment here not only reversing the judgment of the court below but the dismissal of this proceeding on Martin's bond. That question is: Did the circuit clerk have the authority to issue this warrant? If he did not, Martin's arrest was unlawful, the sheriff was without authority to hold him in custody, and the bond by which he was set at large is void, unless it is valid under Section 1246, Code 1930.

1. Did the circuit clerk have authority to issue this warrant? Section 2964, Code 1930, applies to the clerks of all courts, but only as to process issuing out of the courts of which they are clerks, and obviously has no application here. No other source has come under our observation from which authority in a clerk of the circuit court to issue a warrant for the arrest of a person charged with the commission of a crime by an affidavit lodged with him can be derived, unless it be Section 167 of the State's Constitution of itself alone or in connection with the common law or Section 1321, Code 1930.

Section 167 of the Constitution is as follows: "All civil officers shall be conservators of the peace, and shall be by law vested with ample power as such." This section is self-executing only to the extent that it designates all civil officers as conservators of the peace, thereby charging them with the duty of keeping the peace. It does not provide ways and means for the discharge of this duty, which must be found either in the common law of this State, or in a statute enacted by the legislature thereof. The inquiry into whether either of these sources provide such ways and means may best be begun by an examination of the common law, if any, pertaining to conservators of the peace.

A conservator of the peace, ex vi termini, is a person charged with the duty of keeping the peace. In England, prior to A D. 1195, this duty was discharged by certain public officers charged therewith by virtue of their offices. In A. D. 1195, under a proclamation by the king's Justiciar, there came into existence another class of persons charged merely with the duty of keeping the peace, who became known as wardens or conservators of the peace. Prior to the reign of Henry the Second, persons charged with keeping the peace discharged that duty by preventing the commission of a crime in their presence, or arresting therefor when so committed. Whether this authority was conferred by the common law or by edict of the king is by no means clear, but beginning with and after that reign their duties were prescribed, at first, by edict of the king, and, later, by statute. The second of the above classes of conservators of the peace were superseded by justices of the peace who came into existence during the reign of Edward the Third, and they soon disappeared from the English judicial system, so that in A. D. 1765, Lord Chief Justice Camden, in Entick v. Carrington, 19 St. Trials, 1029, 1062, could say "the keeping of the peace being so completely transferred to and so engrossed by the justices, that the name of conservator is almost forgot." The powers and duties of justices of the peace, when acting as conservators of the peace, were gradually enlarged by statute until they came to be about the same as those with which our justices of the peace are now invested. All of this will appear from 1 Holdsworth's Hist. of Eng. Law, 286 et seq.; 1 Stephen's History of the Criminal Law, 185, 190; 2 Hawkins, P. C., 8th Ed., Chap. 8; 1 Black Com. 349, et seq. (2 Cooley's Blackstone, 4th Ed., 294); Smith v. Abbott, 2 Harr. 358, 17 N.J.L. 358; Marcuchi v. Norfolk, etc., Ry. Co., 81 W.Va. 548, 94 S.E. 979; In re Barker, 56 Vt. 14; 1 Bouv. Law Diet., Rawles' Third Revision, p. 612; Black's Law Dic. 3rd Ed. 403; 15 C. J. S., Conservator, p. 984; 12 C. J. 522; 35 C. J. 449. Since no English statute, however ancient, is a part of the common law of this State ( Boarman v. Catlett, 13 S. & M. 149; Jordan v. Roach, 32 Miss. 481), the authority and power of a conservator of the peace with us are such only as are defined and limited by a statute enacted by the legislature of the state, except to arrest for crimes committed in his presence, an authority possessed at common law and now by statute by every person. That such is the fact was recognized and acted on...