46 Ark. 38 | Ark. | 1885
The plaintiffs in error were charged by affidavit, before a justice of the peace, with an assault upon one Davidson, with a deadly weapon, and also with an assault and battery committed' upon him. The warrant of arrest specified the first named offense. They made an application for a change of venue, grounded upon the prejudice of the justice who issued the warrant, but not supported by the affidavit of any third person, as sec. 2379' Mansfield’s Digest requires. Their petition was, however, granted and the cause sent to a justice in another township.
Upon separate trials, Thomas Martin was convicted of an aggravated assault, and John of an assault and battery. Both appealed and entered into a joint bond, with one Rutherford as their surety, in the sum of $200, conditioned for the payment of the fine and costs.
In the circuit court a demurrer was filed to the affidavit upon which the warrant issued and to the jurisdiction of the court. The demurrer was properly disregarded. The-justice and the circuit court on appeal, certainly had jurisdiction to inquire into the truth of the charge; and it is too late on appeal to raise the question of jurisdiction over the person of the defendants. The order for a. change of venue needed not to set forth the ground of removal. This appears from the affidavit therefor, which is part of the record. Dixon v. State, 29 Ark., 166.
Nor was it necessary to the jurisdiction of the magistrate, to whom the cause was transferred, that a supporting affidavit should have been filed before the order of removal was made. This was an objection which was waived by not being taken advantage of in the court of the justice who tried the case. Brown v. State, 13 Ark., 96.
The affidavit and warrant were not subject to demurrer-They had served their purpose in bringing the defendants before an officer and were of no future moment. No written information or pleadings are required in a justice’s court. Mansfield’s Digest, sec. 2367. When the case is carried by appeal to the circuit court, it is there for trial on its merits, and technical objections to the forms of procedure in the lower court are futile.
The defendants were put upon trial jointly. This was in the discretion of the circuit court. Mansfield’s Digest, sec. 2216.
The jury returned a general verdict of guilty, and assessed the fine of the defendants at $1 each. Thereupon judgment was rendered against them for said fine and costs, and also against their surety, the same as to him not to exceed the penalty of his bond. It is urged that the verdict should not have been received and recorded on account of its uncertainty; that there were several offenses or degrees of the same offense, of which the defendants might have been convicted, and it is impossible to say of which one the jury intended to find them guilty; therefore no valid judgment could be entered thereon.
In the absence of a bill of exceptions, showing what took place at the trial, it will be presumed, from the fine imposed and in favor of the verdict and judgment, that the jury meant to convict of the lowest grade of the offense.
It is no ground of reversal that the judgment for costs is against both defendants jointly. The verdict and judgment against them are several; that is, they fix the fine to be paid by each. Straughan v. State, 16 Ark., 44.
The statute authorizes a judgment against the surety in the appeal bond, on conviction of the principal, without further notice. Mansfield’s Digest, sec. 2435.
Affirmed.
