115 So. 879 | Miss. | 1928
Lead Opinion
The prosecution was initiated before F.L. Hall, a justice of the peace of that county, on an affidavit charging Hitt with the unlawful sale of one gallon of whisky. The justice of the peace issued a warrant, and thereafter the defendant was arraigned. The justice of the peace heard the case, and adjudged the defendant guilty as charged, and imposed a fine of one hundred dollars and ninety days in jail. From this judgment, Hitt immediately appealed the case to the circuit court, and filed an appeal bond in accordance with the statute. In the circuit court, the defendant moved to quash the affidavit, to dismiss the cause, and to be discharged, setting up in the motion that on the trial in the justice of the peace court he had there moved to dismiss the cause because the justice of the peace was disqualified to try him, for the reason that said justice of the peace was an interested party, and not qualified to try the cause under the Constitution of the state, and the laws, providing that justices of the peace shall receive compensation for trying causes and misdemeanors by costs collected from the defendant only in event of a conviction, and that his trial by the justice of the peace under such circumstances would be a violation of the Fifth and Fourteenth Amendments to the Constitution of the United States as construed by the supreme court of the United States in the case of Ed Tumey v. State of Ohio,
It was further set up in the motion that because of said interest of the justice of the peace he was without jurisdiction to try the cause, and that therefore, on appeal of the cause to the circuit court, it was also without jurisdiction to entertain the appeal except to quash the affidavit.
A plea in abatement, of the same tenor and effect, was filed by the defendant in the circuit court, and thereupon *725 the circuit court allowed the defendant a special bill of exceptions setting forth that Hitt had proof before the circuit court on the motion to quash that the defendant was forced by the justice of the peace to a trial over his objection stating the disqualification of the justice of the peace to try the cause because, as alleged, his compensation as justice of the peace depended upon a conviction of the defendant. The bill of exceptions further stated that the defendant showed that he raised the question of disqualification before the justice of the peace prior to his arraignment and before entering his plea of not guilty.
The bill of exceptions shows that the circuit court overruled the motion to quash the affidavit and discharge the defendant. A special bill of exceptions to the same effect was granted by the judge of the circuit court on the plea in abatement. Oral proof was introduced to show what had occurred with reference to the disqualification of the justice of the peace in the trial before him. No order was entered on the minutes of the circuit court as to the motion or as to the plea in abatement; but the bill of exceptions shows that the court overruled the motion and held the plea insufficient.
The record does not show that the district attorney made any objection to the introduction of oral testimony as to the proceeding in the justice of the peace court. The Attorney-General, however, here raises the point that no order was entered on the plea in abatement; but, since the motion to quash raises the same question, we have concluded that the constitutional questions raised by the defendant in the lower court are of such moment as to elicit from us a decision of the questions thus presented. Neither in the bill of exceptions, nor in the record, is it shown whether or not the justice of the peace had theretofore tried any defendant on a misdemeanor or any other criminal charge.
The first question presented is, Was the justice of the peace shown to have been disqualified? *726
Section 171 of the Constitution of 1890 provides for the establishment of the office of justice of the peace, and provides also that justices of the peace shall have concurrent jurisdiction with the circuit court of all misdemeanors, and further stipulates that the legislature shall provide for an appeal in all such cases to the circuit court. Section 2403, Hemingway's 1927 Code (section 2749, Code of 1906), vests jurisdiction, concurrent with the circuit court of the county, in the justices of the peace over all crime occurring in their several districts, where the punishment prescribed does not extend beyond a fine and imprisonment in the county jail, and further stipulates that, if the justice of the peace of a district shall be disqualified, any justice of the peace may have jurisdiction thereof. Section 2404, Hemingway's 1927 Code (section 2750, Code of 1906), establishes the practice of said courts. Sections 2408 and 2411, Hemingway's 1927 Code, provide for the method of trial by jury of six persons, and section 2406, Hemingway's 1927 Code, provides for bail for appearance for trial. Section 2405, Hemingway's 1927 Code, provides, among other things, that the judgment and committal shall require the defendant to pay the fine imposed upon him and all costs, and that he is committed to the county jail until such payment of fine and costs. Section 69, Hemingway's 1927 Code, provides that, in all cases of criminal offense tried by a justice of the peace, an appeal may be taken to the circuit court of the county, and that such appeal stays the judgment appealed from on giving bond in the penalty of not less than one hundred dollars nor more than five hundred dollars, and in intoxicating liquor cases not less than one hundred fifty dollars nor more than one thousand dollars. This statute further provides that on the appearance of the defendant in the circuit court his case shall be tried anew and disposed of as other cases pending therein. Section 70 provides that appeals may be taken without supersedeas, upon affidavit of the person convicted *727 that he is not able, on account of poverty, to give bond, and provides that his case, upon the filing of an affidavit, shall be removed to the circuit court and there tried de novo.
It has been consistently held by this court that a judge of a court who has cause to recuse himself must pass upon the question of his disqualification, and it is incumbent upon the challenging party to bring to the attention of the court, under the rules of evidence, the facts upon which such disqualification rests. SeeCashin v. Murphy,
Paragraph (x) of section 1962, Hemingway's 1927 Code, is as follows:
"For services as conservators of the peace and for examinations or trials of all state cases in which the state fails in the prosecution, to be paid out of the county treasury on the allowance of the board of supervisors, on a detailed fee bill in each case, annually, a sum not exceeding — sixty dollars."
The remainder of this section sets out the schedule of fees to be taxed, and received by justices of the peace in all cases authorized by section 1922 of Code of 1927 and section 261 of the Constitution of 1890.
We observe this became the law in this state, by chapter 217, Laws of 1912, as amended by chapter 132, section 1, Laws of 1920, and Laws 1922, chapter 165, changing section 2182, par. (v) Code of 1906, in this material particular. Under the latter section, justices of the peace could collect from the county treasurer only fifty dollars, and only in cases for services as conservators of the peace or in the investigation of felony charges.
Counsel for appellant here cites the case of Connerly v.Lincoln County,
Without elaboration, we think Mr. Chief Justice TAFT, in the case of Tumey v. Ohio,
"In other states than those above mentioned the minor courts are paid for their services by the state or county regardless of acquittal or conviction."
In the light of the sixty dollars annual payment allowed by the statute in case of acquittal, considering the small amount of costs, two dollars and seventy-five cents, in this case, we do not think the record shows the disqualification of the justice of the peace, if perchance, it should be held that, under our system of criminal practice and procedure, a justice of the peace would be held *729 disqualified because of the small amount of two dollars and seventy-five cents which he would be allowed in case of a conviction.
2. Conceding, for the sake of the argument, that we are in error in the conclusion stated above and that it appears from the statute that the justice of the peace in the instant case was disqualified because of his interest in the two dollars and seventy-five cents, the amount of his costs, has the defendant in this case been denied due process of law as set forth in the Fourteenth Amendment to the Federal Constitution? An examination of the statutes and Codes of our state reveals that for a period of more than eighty years it has been the established custom to impose costs on the defendants convicted of misdemeanors, and that the defendant stands committed until such fine and costs be paid, and that the justices of the peace, through those years, have been permitted to retain the costs. We know that Mississippi is, for the most part, rural and agricultural, and that, as a general rule, the earnings of those holding this office are, of necessity, small. Justices of the peace seem to fit the place for the immediate trial of offenses occurring in their neighborhoods, and for otherwise discharging the duties incident to a minor court.
As the appeal here prosecuted is bottomed upon the case ofTumey v. Ohio,
If the judgment was void, habeas corpus would be the remedy in this state, and the last announcement thereon was in the case of Dixon v. Rowland,
"The disqualification of a judge because of his interest in a case, or of his relationship to a party thereto, can be availed of only by an objection to the judge made on that ground, either before his judgment is rendered, or, if made thereafter, before the judge has lost control of the judgment (Y. M.V.R.R. Co.
v. Kirk,
To the same effect is the case of Donnell v. State,
The effect of the trial de novo is the strenuous effort of this state to see to it that a defendant charged with a criminal offense is awarded a fair and impartial trial as accorded by the law of the land.
The defendant in this case gave an appeal bond. If he had not done so, still he could have had an adjudication of his guilt or innocence and right to liberty, by the mere filing of an affidavit. If he had been arrested on the same day and there had been no justice of the peace court, the sheriff who caught him in the act, or had information that authorized him to arrest defendant under the law, would have required a bond before he could be released, or he would have had to remain in jail to await trial. In its practical effect, there is no difference. The judgment of the justice of the peace was stayed. It never had any effect upon the trial of his case in the circuit court before a jury of twelve men and a judge; both being impartial so far as the record shows. His trial in the circuit court was as if there had never been a trial before a justice of the peace, and was effectual to correct any and all errors committed by the justice of the peace either as to a ruling of law, or as to a ruling on facts. He not only had a review of his case, but he had a retrial *732 of his case, with all the advantages that are accorded to a defendant whose life or liberty are at stake. Under the rule announced by our court that, where a judgment is voidable, the remedy is in the appellate court where the trial may be denovo, as it were, vacating the judgment of the justice of the peace and ignoring it, thereby the state has awarded to the defendant due process of law, or a trial in accordance with the law of the land as set forth in the Fourteenth Amendment.
Counsel for the appellant would have us apply the due process of law clause to one incident only of this case, and eliminate all others.
Mr. Justice PITNEY, in the case of Frank v. Mangum,
reported in
"As to the `due process of law' that is required by the Fourteenth Amendment, it is perfectly well settled that a criminal prosecution in the courts of a state, based upon a law not in itself repugnant to the Federal Constitution, and conducted according to the settled course of judicial proceedings as established by the law of the state, so long as it includes notice, and a hearing, or an opportunity to be heard, before a court of competent jurisdiction, according to established modes of procedure, is `due process' in the constitutional sense" — citing authorities.
And the court said with reference to proving the conditions surrounding the trial, absence of the defendant when the verdict was rendered, and as to whether or not jurisdiction was lost to receive the verdict and pronounce sentence as follows:
"But it would be clearly erroneous to confine the inquiry to the proceedings and judgment of the trial court. The laws of the state of Georgia (as will appear from decisions elsewhere cited), provide for an appeal in criminal cases to the supreme court of that state upon divers grounds, including such as those upon which it is here asserted *733
that the trial court was lacking in jurisdiction. And while the Fourteenth Amendment does not require that a state shall provide for an appellate review in criminal cases (citing authorities) it is perfectly obvious that where such an appeal is provided for, and the prisoner has had the benefit of it, the proceedings in the appellate tribunal are to be regarded as a part of the process of law under which he is held in custody by the state, and to be considered in determining any question of alleged deprivation of his life or liberty contrary to the Fourteenth Amendment. In fact, such questions as are here presented under the due process clause of the Fourteenth Amendment, though sometimes discussed as if involving merely the jurisdiction of some court or other tribunal, in a larger and more accurate sense involve the power and authority of the state itself. The prohibition is addressed to the state; if it be violated, it makes no difference in a court of the United States, by what agency of the state this is done; so, if a violation be threatened by one agency of the state but prevented by another agency of higher authority, there is no violation of the state. It is for the state to determine what courts or other tribunals shall be established for the trial of offenses against its criminal laws, and to define their several jurisdictions and authority as between themselves. And the question whether a state is depriving a prisoner of his liberty without due process of law, where the offense for which he is prosecuted is based upon a law that does no violence to the Federal Constitution, cannot ordinarily be determined, with fairness to the state, until theconclusion of the court of justice in its courts" (italics ours) — citing Virginia v. Rives,
The court there concluded that the Federal court could not ignore the fact that there had been a fair and impartial trial of the case subsequent to the error committed in the lower tribunal, and the court said further:
"This is not a mere matter of comity, as seems to be supposed. The rule stands upon a much higher plane, for it arises out of the very nature and ground of the inquiry into the proceedings of the state tribunals and touches closely upon the relations between the state and the Federal governments."
We think the announcement of the court in the Frank case,supra, is conclusive, convincing, and controlling here.
However, since the supreme court of the United States decided the Tumey case, supra, DAWSON, District Judge, in Ex parteMeeks (D.C.),
We conclude that the judgment in the justice of the peace court was voidable; that, under our procedure, *735 Hitt would not have been entitled to a writ of habeas corpus to secure his liberty; that he was awarded due process of law, by which he could secure a rehearing of his case de novo in a court of competent jurisdiction, and whatever error was committed by the justice of the peace in his view of the law, or his determination of the facts, was cured by the full, free, fair, and impartial de novo trial accorded him in the circuit court.
Under our Constitution and laws, the justice of the peace had jurisdiction of the person of Hitt, and jurisdiction of the subject-matter herein, to determine a misdemeanor case where the sentence imposed by law was fine and imprisonment in the county jail.
It follows that, under the due process of law sections of both state and federal Constitutions, Hitt was deprived of no right accorded him by the law of the land.
Affirmed.
Concurrence Opinion
The appellant's contention, in substance, is that, the judgment of the court below should be reversed, for the reason that the justice of the peace in whose court the prosecution was begun was disqualified from trying the case, because his compensation for so doing depended on the conviction of the appellant.
This contention rests on section 171 of the state Constitution and the due process clause of the Federal and state Constitutions. Section 171 of the state Constitution provides that:
"No justice of the peace shall preside at the trial of any cause where he may be interested, . . . except by the consent of the justice of the peace and of the parties." *738
Leaving out of view section 261 of the state Constitution, which seems to permit the taxing of the fees of a justice of the peace against persons convicted by him of the commission of crime, and assuming that the justice of the peace before whom this prosecution was begun was disqualified from trying the appellant, he cannot now complain thereat, for the reason that he will not, and cannot, be called on to pay the fine, or suffer the imprisonment imposed on him by the justice of the peace. The fine and imprisonment that he will here be called on to pay and suffer were imposed by a court to which he appealed from that of the justice of the peace, presided over by a competent judge, and which determined his guilt or innocence uninfluenced by the judgment of the justice of the peace. Such was not the case inTumey v. State of Ohio,
I am of the opinion that the judgment of the court below should be affirmed.
Concurrence Opinion
I concur in the majority opinion upon one ground alone, namely, that the judgment appealed from was a judgment of the circuit court, a court of competent jurisdiction, where appellant received a fair and impartial trial by a court presided over by a disinterested judge; in other words, a court which furnished appellant due process.
I cannot give my assent to the other grounds upon which the majority opinion places the decision of the court. Under the Tumey case, I can see no escape from the conclusion that justices of the peace of this state, sitting for the trial of misdemeanors, are not judicial tribunals, they are not courts under the due process clause of the Fourteenth Amendment to the Federal Constitution. The pittance of the maximum of sixty dollars a year allowed by our statute out of the county treasuries to justices of the peace for their lost costs, does not save them from interest in the result of such prosecutions. It seems to me that this is too apparent to require discussion. *736 And, by the way, that statute is of doubtful validity under section 361 of our Constitution which provides that:
"The expenses of criminal prosecutions, except those beforejustices of the peace, shall be borne by the county in which such prosecutions shall be begun." (Italics mine.)
The majority opinion stresses the fact that, under the laws of this state, a defendant convicted of a misdemeanor before a justice of the peace is entitled to an appeal, without bond, to the circuit court, where he gets a trial de novo; but it overlooks the requirement of section 87, Code of 1906 (section 69, Hemingway's 1927 Code), that, in order for a defendant so convicted to supersede the judgment of the justice of the peace, he must give a supersedeas bond. If he fails to give asupersedeas bond, he might suffer the full penalty of the law imposed by the justice of the peace before his appeal to the circuit court could be heard. To illustrate: A defendant is convicted in a justice of the peace court of the unlawful sale of intoxicating liquor. The justice of the peace imposes a penalty of ninety days' imprisonment. He appeals to the circuit court, but is unable to give a supersedeas bond. The circuit court sits more than ninety days after the judgment of the justice of the peace is rendered. Therefore, before he gets a trial denovo in the circuit court, he has been forced to suffer the full penalty of the law. So far as a defendant, so situated, is concerned, he is without remedy. His appeal to the circuit court is fruitless. He has suffered the penalty of the law imposed by a court which, under the Tumey case, failed to furnish him due process.
However, the case here for consideration is not that kind of case. The appellant appealed to the circuit court withsupersedeas. He did not suffer the penalty of the law imposed upon him by the judgment of the justice of the peace. He was relieved of that by his appeal to the *737
circuit court with supersedeas. It seems, therefore, the fact that the justice of the peace before whom appellant was tried denied him due process was without prejudice to appellant. He was able, by his appeal and supersedeas bond, to take his case to a court which did furnish him due process. This view seems to be borne out by the cases of Frank v. Mangum,
In the consideration of this question, it should be kept in mind that the appellant in this case is not complaining of the judgment of the justice of the peace before whom he was convicted, but of the judgment of the circuit court to which he appealed from that conviction. If he had been unable to supersede the judgment of the justice of the peace, this would have been a very different case.
