Rodgers v. State

58 So. 536 | Miss. | 1912

Mayes, C. J.,

delivered the opinion of the court.

The main facts relied on by appellant for reversal in this case are about as follows: It appeais that an affidavit was made before E. J. Wall, a justice of the peace in Forrest county, charging appellant with the unlawful sale of intoxicating liquors. The affidavit was lodged with the justice of the peace prior to the convening of the November, 1911, term of the circuit court of Forrest county. After the affidavit-was made and filed with the justice of the peace, a warrant fob the arrest of appellant was issued, and appellant was arrested and placed under bond for his appearance on the 9th day of November, 1911, to answer the charge made in the affidavit. It appears that, the circuit court convened on the 6th day of November, 1911, and between the 6th and 9th the- grand jury returned an indictment against appellant charging him with the same offense charged in the affidavit then on file in the justice of the peace court. On the 9th day of November, the day set for the trial of appellant in the justice court, appellant appeared for trial, and the county attorney representing the state, with the consent of the court, dismissed the prosecution in the justice court. Appellant protested against this proceeding, hut without success. After the dismissal of "the case in the justice court, the case was called on the indictment in the circuit court, and appellant filed a plea to the jurisdiction of the court on the ground that fhe circuit court acquired no jurisdiction under the indictment. "We need not follow the course the pleadings "took; suffice it to say that it is the contention of appellant "that, because an affidavit had been made in the justice court, a court of concurrent jurisdiction with the circuit court, the circuit court could not thereafter acquire any jurisdiction to proceed with this indictment for the same offense, and that the action of the county attorney was a fraud on the jurisdiction of the justice court.

In the case .of Smithey v. State, 93 Miss. 257, 46 South. 410, and in Neely v. State, 56 South. 377, we held that, where concurrent jurisdiction is vested in two courts, the court first acquiring jurisdiction acquires exclusive jurisdiction, and that if a proceeding is instituted in another court about the same subject-matter after one of the courts of concurrent jurisdiction has acquired control, the suit should he dismissed in the last court to acquire jurisdiction. The above statement of the rule is undoubtedly the correct law, hut those cases have no application to this case. The reason of the rule is to prevent confusion and conflicts in jurisdiction'and to'prevent a person from being twice tried for tbe same offense, but no defendant has a vested right to be tried in any particular court of concurrent jurisdiction. 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. Under such circumstances, there can be no confusion or conflict between the courts for the reason that only one court then has jurisdiction, or is trying to exercise it.

At the date that this plea in abatement, was filed, no other court had jurisdiction of the offense and there was therefore no impediment in the way to his trial under the indictment. It can make no difference to this appellant, from what motives the justice of the peace may have acted in dismissing this suit. The justice of the peace undoubtedly had a right to dismiss it, and having done so, the appellant has no cause to complain because there is another court of concurrent juisdiction and equally as well capacitated to try the case as the justice of the peace. The appellant can only be interested in having but one prosecution before a fair and impartial tribunal in whatever court he is arraigned for trial on the charge. The state is only interested in seeing to it that prosecutions for infraction of the law be conducted in at least one of the courts.

Counsel proceeds upon the idea that the indictment does not confer any jurisdiction on the circuit court because an affidavit had formerly been made in the justice of the peace court. This is an erroneous conception of the law. The circuit court has jurisdiction of the subject-matter, and the indictment is a valid indictment conferring jurisdiction on the court to try the offender for the offense charged, subject to his right, if the. fact existed, to defeat the jurisdiction of the circuit court by showing that he was being prosecuted at the time in .another court of concurrent jurisdiction for the same offense. But the pleadings show that this was not a fact.

Affirmed. $

Suggestion of error filed and overruled.'