Cross v. StateCross v. State
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- Head
The only objection taken by the State’s demurrer tо the plea of former jeopardy was thаt the plea did not contain “a record of the proceedings wherein the said defendant was placed in jeopardy, as in said plea averred.” The plea shows defendant wаs arrested ahd tried on a warrant issued on a complaint made by the owner of the proрerty charging the defendant with *76grand larceny, and undеrtakes to set out the substance and legal еffect of those proceedings.
There are three decisions of this.court expressly holding that where jeopardy under an indictment is pleaded to a subsequent indictment, the former indictmеnt must beset out in the plea,. — Henry v. State, 33 Ala. 389; Foster v. State, 39 Ala. 229; Smith v. State, 52 Ala. 407. See also, 1 Bish. Cr. Law, §§ 680 et seq.
A justice of the peace in the exercise of his jurisdiction of criminal offеnses can not lawfully try and convict or acquit а supposed offender or put him in jeopаrdy, except upon a written complaint or accusation charging the party with, the offense. Such a written complaint or accusаtion is as essential to the jurisdiction of the justicе as the indictment is to the jurisdiction of the circuit сourt; and proof of this accusation cаn only be made by the production of the doсument itself, unless lost‘or mislaid under circumstances whiсh let in secondary evidence.
We are unаble, therefore, to perceive any distinction in principle between this case and thоse.cited. We can not see why the fact thаt one is a court of record and the other not, should affect the question. The purposе of the rule is to enable the court to have before it the written accusation under which the jeopardy is alleged to have occurred so that the court can see that it is an аccusation under which jeopardy may havе lawfully arisen in the manner claimed in the pleа. The technical difference in the nature of the two courts, the one being a court of rеcord and the other not, we think, is an immaterial consideration.
The court did not err in sustaining the demurrer to the plea.
The filing of the indictment in court is оfficially certified by the clerk and endorsed thеreon. That is all the record need show touсhing its filing.
In view of the provisions of section seven of the act to regulate the trials of misdemeanors in Sumter county (Acts of 1882-83, p. 214), the record sufficiently shows that the county court acquired jurisdiction of the trial of this cause. . .
Affirmed.