Pittman v. State
| Decision Date | 04 April 1922 |
| Docket Number | 4 Div. 681. |
| Citation | 93 So. 42,18 Ala.App. 447 |
| Parties | PITTMAN v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied April 18, 1922.
Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.
Henry Pittman was convicted of cruelty to animals, and he appeals. Affirmed.
Farmer Merrill & Farmer, of Dothan, for appellant.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
The indictment was in Code form. The demurrers thereto were properly overruled. Thomas v. State, 166 Ala. 40, 52 So. 34.
The original prosecution was begun in the justice of the peace court, and was for the offense denounced by section 6232, Code 1907-cruelty to animals. Of this offense the justice of the peace had jurisdiction. Code 1907, § 6733.
The record shows that on the 14th day of April 1919, the defendant was in due form arraigned on said charge in the justice court of John A. May, and before entering upon the trial of this case demanded a trial by jury; that said demand for trial by jury was in writing, but, notwithstanding the demand by defendant for a jury trial, the justice of the peace denied same, and proceeded to the trial of the case and, after hearing the testimony, adjudged the defendant guilty as charged, and assessed a fine against him of $100 and entered judgment accordingly.
Under the provisions of section 6739, Code 1907, the defendant had the right to demand a trial by jury and when such demand was made it had the effect of divesting the justice of the peace of all jurisdiction of the case except to require the accused to enter into bond, with good sureties, conditioned for his appearance at the next term of the circuit court of the county to answer the charge; and, failing to give such bond, the defendant must be committed to the county jail, etc. In Ex parte Dunklin, 72 Ala. 241, the Supreme Court said:
"If, when brought before the justice, the accused desires it, he may demand a trial by jury in the first instance; and, if he does, the jurisdiction of the justice to determine the law and facts is at an end."
See, also, Wiley v. State, 117 Ala. 158, 23 So. 690.
The justice of the peace had no jurisdiction to finally hear and determine this case after the demand for trial by jury; therefore the judgment of conviction attempted to be rendered against defendant was null and void, and of no force and effect whatever, and this judgment, being invalid, is not a bar to a subsequent prosecution, since a former conviction, pleadable in bar of another prosecution, presupposes a trial before a court having jurisdiction to render a judgment on the merits.
It appears that after the attempted appeal by defendant from the justice court to the circuit court the cause in the circuit court was stricken from the docket. In the case of Wiley v. State, supra, the court, in referring to the similar situation, said:
"The case was not carried into the criminal court in any of the modes by which its jurisdiction could be put in exercise, and all of the proceedings therein are mere nullities."
It will be seen from the transcript that, after the defendant was indicted in the circuit court, he filed two pleas setting up former jeopardy, based on the proceedings before the justice of the peace. In the pleadings filed the state took the position that any proceedings in the justice court, after the demand for a jury was filed, were void and of no effect. The lower court sustained the position of the state. From what has been said...
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