Ford v. State

| Miss. | Oct 15, 1909

Lead Opinion

Mayes, J.,

delivered the opinion of the court.

On the 11th day of January, 1909, a proceeding was instituted under section 1548, Code of 1906, by Wiley Jones against Lee Ford, tbe object of which was to require Lee Ford to give a bond to keep the peace. The affidavit is in the language of the statute. The proceeding was instituted before a justice of the-peace of Lee county, in which county the affiant lived, and it is & conceded fact in the case that Lee Ford lived in Chickasaw county. 'When the affidavit was made, a warrant was duly issued by a justice of the peace as required by law, and Lee Ford was subsequently arrested under said warrant. A hearing was had before the justice of the peace on the 20th day of January following, and the justice required Ford to give a bond to keep the peace, fixing his bond at the sum of $200. An appeal was taken to the circuit court, and the cause was again heard. It fuliy appears in the testimony that the threats made by Ford were made at affiant’s home in Lee county, and in the justice’s district in which the affidavit is made. 'When the cause came on to be heard, the court impaneled a jury and submitted to them the' cause, and, the jury finding defendant guilty as charged, the court placed him under a peace bond in the sum of $200.

There are numerous questions presented in this case — the first being that the court was without jurisdiction to try it, because the affidavit was made in Lee county, whereas it appears that the appellant resided in Chickasaw county; and, second, it is urged that the court had no right to submit the case to be tried by a jury. It is argued by counsel for appellant that the proceeding under Code 1906, § 1548, is not a criminal, but a civil, proceeding, and for that reason jurisdiction only attached in the justice of the peace district in the county of the residence of the defendant. We do not think the contention of counsel as to this is sound. It cannot be said, in strictness, that this is either a civil or a criminal proceeding; but it is more in the nature of ■a criminal proceeding, and the jurisdiction lies in any county, •or justice district, where the party makes the threats, or in which the hostile action occurs leading to the apprehension that ■the person charged with so doing intends to commit an offense against the person or property of another. It abundantly appears in this record that the threats were made in Lee county at' a time when the appellant was there, that the danger to Lee Ford is threatened in that county, and the jurisdiction was unquestionably in Lee county under the facts of this case.

In the case of Howard v. State, 121 Ala. 21" court="Ala." date_filed="1898-11-15" href="https://app.midpage.ai/document/howard-v-state-6517906?utm_source=webapp" opinion_id="6517906">121 Ala. 21, 25 South. 1000, the Alabama court very aptly says, in construing a statute of the state of Alabama similar to the one here, that “the purpose of’ the statute is to prevent the commission of an offense against the person or property of another, and to this end a warrant may-issue for the arrest of the person who has threatened or is about to commit an offense on the person or property of another; and, if there is just reason to fear the commission of such offense, the-defendant must be required to- give security to keep the peace. It is a preventive measure, which the magistrate is authorized to set in motion to restrain the defendant from the commission, of an offense against the person or property of another, and not a proceeding to try the person charged with the commission of a criminal offense. To threaten an offense on the person or property of another is not an offense against the law for which a person may be punished. At most, as we have said, he may be restrained from so doing by proper proceedings, but not punished by fine and imprisonment.” This proceeding being a preventive one, the court before whom this proceeding is instituted should require the peace bond to be given in all cases where the-evidence leaves any reasonable doubt as to whether or not the party charged under this section will carry his threat into effect..

The rale which should govern courts in a proceeding of this sort is the opposite from that which should control where a party , is being tried for a crime. When on trial under a criminal charge all reasonable doubts are to be solved in favor of the accused; but when one is accused under this section, and the court has any reasonable doubt as to whether or not the threats have been made, or the danger to the person or property of another is impending, that doubt should be solved in favor of the preservation of the peace, and the bond should be required to'be given, the amount of the bond to be measured by the gravity of the situation and the condition of the parties. It was never intended, by section 1548, when an appeal was taken to the circuit court, that an issue should be tried by any person other than the judge of the court. It was error for the court to submit the question involved in this case to a jury; but it was not such error as should cause a reversal of the judgment. The section under discussion clearly contemplates that the trial shall be by the judge; but,, since the facts of this case fully warranted the court in requiring the bond, and in approving the verdict of the jury the judge necessarily passed on the facts himself, we look to the judgment, rather than the procedure which led up to it, and treat the act of the judge in submitting the matter to the jury, in this character of ease, as mere surplusage, and treat the judgment as his judgment. We think the judgment ought to be, and it is affirmed.

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Dissenting Opinion

Smith, J.,

delivered the following dissenting opinion.

If the statute contemplates, as my brethren say, and I am inclined to think it does, that causes of this character shall be tried by the judge, without the assistance of a jury, then appellant has not had such a trial as the law contemplates. I cannot assent to the statement that in declining to set the verdict aside the judge necessarily passed on the facts himself. If there is sufficient evidence to support a verdict, the judge, on a motion for a new trial, has nothing to do with the question of the correctness of the verdict; that being a matter wholly within the province of the jury. It may be that he himself would have reached a different conclusion on the facts, but would not be warranted in setting the verdict aside.