State v. Shearer

• Decision Date: 11 February 1925
• Docket Number: Criminal 601
• Citation: 232 P. 893,27 Ariz. 311
• Parties: STATE, Appellant, v. FRANK R. SHEARER, ERNEST SPARKS and PETE BOZONICH, Respondents
• Court: Arizona Supreme Court

232 P. 893

27 Ariz. 311

STATE, Appellant, v. FRANK R. SHEARER, ERNEST SPARKS and PETE BOZONICH, Respondents

Criminal No. 601

Supreme Court of Arizona

February 11, 1925

APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge. Judgment reversed.

Mr John W. Murphy, Attorney General, Mr. John F. Ross and Mr Walter Roche, for the State.

Mr John Wilson Ross, for Respondents.

OPINION

PHELPS, Superior Judge.

Briefly stated, the facts in this case are: That defendants were on November 18, 1923, charged with the violation of section 639, Penal Code of 1913, which makes it a misdemeanor for any person or persons, firm or corporation, owning or having charge of any sheep or goats, to herd the same or permit the same to be herded on the land or possessory right to land of other persons without the express consent of the owner.

That defendants were thereafter arrested and brought before the justice of the peace, and the case duly set for trial for the twenty-fourth day of November, 1923. That on said date defendants appeared in person and by counsel in said court, and at that time waived the right to trial by jury, and elected to be tried before the justice of the peace without a jury. Thereupon both the state and defendants presented evidence to the court, and at the conclusion thereof defendants were found guilty as charged in the complaint, and the statutory time for sentence being waived, judgment was pronounced assessing a fine of $25 against each of said defendants, and in default of payment thereof, that each of them be confined in the county jail of Cochise county until such fine was paid, such imprisonment, however, not to exceed twenty-five days.

From this judgment an appeal was duly taken to the superior court of that county, and upon January 14, 1924, defendants appeared by their counsel, who expressly waived the presence of the defendants, and entered a plea of not guilty, and thereupon demanded a trial by jury, and said cause was set down for trial in said superior court for January 29, 1924, and thereafter, when said cause was reached upon the calendar of the court, to wit, upon January 31, 1924, defendants by their counsel filed a motion for continuance, and the court finding the motion sufficient ordered the trial of the cause continued for further setting, and on February 5, 1924, defendants filed a motion to dismiss upon the ground that the judgment rendered therein by the justice of the peace was null and void, in that it deprived the defendants of their constitutional right, "to have a speedy trial by an impartial jury of the county in which the offense is alleged to have been committed," and second, "that defendants could not under the Constitution waive their right to trial by jury."

Upon February 18, 1924, said cause was dismissed by order of the court, and upon February 19th a formal order of dismissal was filed in said cause, which discloses that said cause was dismissed upon the ground that the justice of the peace was without jurisdiction to try the same. From the order of dismissal the state appealed.

Appellant presents two questions for determination; first, did the justice of the peace have jurisdiction to try the case without a jury? Second, if he did not have jurisdiction, have not defendants waived lack of jurisdiction by appealing to the superior court?

The theory of appellee and of the trial court evidently was that a jury under the above provisions constitutes an integral and an essential part of the tribunal established by law for the trial of such offenses; that the law commits to the jury the duty of determining all questions of fact, and that the function of the justice of the peace is merely to determine the law and pronounce judgment upon the verdict of the jury. If this theory be correct, then the justice of the peace would have no more jurisdiction a jury than the jury would have to try the cause without the justice of the peace, for neither would constitute the tribunal provided by law for the trial of such cause, and if the justice of the peace has no jurisdiction under the law defining his power and authority to proceed with the trial without a jury, no act of the parties can confer jurisdiction upon him to do so, and a trial in the absence of either justice or jury would be a trial by a tribunal unknown to the law, and its judgment absolutely void.

The jurisdiction of the justice courts is to be determined

The jurisdiction of the justice courts is to be determined from the organic and statutory law creating and prescribing their authority and power.

The Constitution of Arizona, section 9, article 6, provides that the jurisdiction of justices of the peace shall be provided by law, and section 1308, Penal Code of 1913, provides that:

"The justice's courts have jurisdiction of the following offenses committed within their respective precincts. . . . Breaches of the peace, riots, routs, affrays, committing a willful injury to property, and all misdemeanors punishable by fine not exceeding...