| Ala. | Nov 15, 1897
The only objection taken by the State’s demurrer to the plea of former jeopardy was that 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 was arrested ahd tried on a warrant issued on a complaint made by the owner of the property charging the defendant with
There are three decisions of this.court expressly holding that where jeopardy under an indictment is pleaded to a subsequent indictment, the former indictment must beset out in the plea,. — Henry v. State, 33 Ala. 389" court="Ala." date_filed="1859-01-15" href="https://app.midpage.ai/document/henry-v-state-6506382?utm_source=webapp" opinion_id="6506382">33 Ala. 389; Foster v. State, 39 Ala. 229" court="Ala." date_filed="1864-01-15" href="https://app.midpage.ai/document/foster-v-state-6507143?utm_source=webapp" opinion_id="6507143">39 Ala. 229; Smith v. State, 52 Ala. 407" court="Ala." date_filed="1875-06-15" href="https://app.midpage.ai/document/smith-v-state-6509042?utm_source=webapp" opinion_id="6509042">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 offenses can not lawfully try and convict or acquit a supposed offender or put him in jeopardy, except upon a written complaint or accusation charging the party with, the offense. Such a written complaint or accusation is as essential to the jurisdiction of the justice as the indictment is to the jurisdiction of the circuit court; and proof of this accusation can only be made by the production of the document itself, unless lost'or mislaid under circumstances which let in secondary evidence.
We are unable, therefore, to perceive any distinction in principle between this case and those.cited. We can not see why the fact that one is a court of record and the other not, should affect the question. The purpose 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 accusation under which jeopardy may have lawfully arisen in the manner claimed in the plea. The technical difference in the nature of the two courts, the one being a court of record 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 officially certified by the clerk and endorsed thereon. That is all the record need show touching 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.