103 So. 10 | Miss. | 1924
There is but one question necessary to be considered in disposing of this case, and for a proper understanding of this question and the appellant's contention in reference thereto it will be necessary to set forth in detail certain proceedings in the lower court out of which the question arises.
On July 31, 1923, an affidavit was filed in a justice of the peace court of said county charging the appellant with a sale of liquor, and upon this charge she was arrested and entered into bond for her appearance in that court to answer the charge. This affidavit has not been disposed of; and was pending in the justice court at the time of the trial in the circuit court of the case at bar.
At the November, 1923, term of the circuit court two indictments were returned against the appellant charging her with the unlawful sale of intoxicating liquors, these indictments being numbered 15742 and 15743, and it is admitted that indictment No. 15743 covered the same alleged offense as that charged in the affidavit of July 31, 1923, and which was still pending in the justice court.
At the January, 1924, term of the circuit court another indictment, No. 15786, was returned against the appellant charging her with another sale of liquor in January, 1924, and upon this indictment she was placed on trial, and was convicted.
On the trial of this case the state first offered testimony to prove a sale of intoxicating liquor by the appellant in January, 1924. In addition to this testimony the state was permitted, over the objection of the appellant, to introduce testimony to prove a sale by her in November, *202 1923, and also a sale in July, 1923, it being admitted in the record that the alleged sale in July was the identical offense charged in indictment No. 15743, and also in the affidavit which was still pending in the justice court.
On appeal the contention of appellant is that the circuit court was without jurisdiction to try cause No. 15743, the case in which appellant stood indicted for the identical offense for which she was under bond for her appearance to stand trial on an affidavit then pending and undisposed of in the justice of the peace court, and, since the circuit court was without jurisdiction of this offense, testimony to prove the same was inadmissible on the trial of an indictment based upon another and different offense.
The first question for consideration is whether the circuit court had jurisdiction of the offense covered by indictment No. 15743, while an affidavit covering the identical offense, and filed before the finding of this indictment, was pending and undisposed of in the justice court. A justice of the peace court has jurisdiction, concurrent with the circuit court, of misdemeanors, and it is settled by the decisions of this court that, where concurrent jurisdiction is vested in two courts, the court first acquiring jurisdiction acquires exclusive jurisdiction. Smithey v. State,
In the Rogers case, supra, it was held that, when one court of concurrent jurisdiction has acquired jurisdiction and voluntarily relinquishes it by a nolle pros. or dismissal of the case, there can be no legal or logical reason for preventing the other court from proceeding, but this doctrine has no application in the present case, since it is admitted that the justice court first acquired jurisdiction and that the case was still pending in the justice court at the time of the trial of this case in the circuit court. It necessarily follows that the circuit court had no jurisdiction to try the appellant on the charge *203 covered by indictment No. 15743, and that the justice court then had exclusive jurisdiction of that offense.
In a prosecution for the unlawful sale of intoxicating liquor, may the state, by virtue of the provisions of section 1762, Code 1906 (section 2098, Hemingway's Code), introduce evidence of a sale of which the court in which the prosecution is pending has no jurisdiction?
Section 1762, Code 1906 (section 2098, Hemingway's Code) provides:
"On the trial of all prosecutions for the violation of law by the sale or giving away of liquors, bitters, or drinks, the state shall not be confined to the proof of a single violation, but may give evidence in any one or more offenses of the same character committed anterior to the day laid in the indictment or in the affidavit, and not barred by the statute of limitations; but in such case, after conviction or acquittal on the merits, the accused shall not again be liable to prosecution for any offense of the same character committed anterior to the day laid in the indictment or in the affidavit."
It is manifest that the circuit court had no jurisdiction to try the appellant on indictment No. 15743, and, if it had attempted to do so, its jurisdiction would have been defeated by showing, as was done in the present case, that she was being prosecuted at the time in another court of concurrent jurisdiction for the same offense. This being true, may the court do by indirection what it cannot do directly? The purpose of introducing the evidence of the sale covered by indictment No. 15743 was to strengthen the state's cause and render more certain a conviction upon the indictment being tried, and, where evidence of more than one offense is offered, a conviction may rest upon the evidence of all or any one of such offenses. It cannot be known that the conviction in the present case does not rest entirely or in part on the evidence of a sale of which another court had sole and exclusive jurisdiction, and, if so, it is in effect a conviction of an offense of which the court had no jurisdiction. *204 When one court has acquired full and exclusive jurisdiction of an offense, this jurisdiction should not be defeated by the simple expedient of introducing in another court of concurrent jurisdiction evidence of the offense, and we do not think the statute authorizing the introduction of evidence of more than one offense in prosecutions for violations of liquor laws can be construed to confer the right or power so to do. We are clearly of the opinion that it was not the intention of this statute to authorize a conviction based upon or supported by evidence of an offense of which the court had no jurisdiction, and that it was error to admit in this case evidence of the sale in July, 1923.
The judgment of the court below will therefore be reversed and the cause remanded.
Reversed and remanded.
