24 So. 2d 85 | Miss. | 1945
Appellant had bought a cow from a Mr. Martin, which, under the terms of the trade, was to be delivered by the seller at the home of the appellant. The Martin brothers, in performance of this term of the transaction, had loaded the cow in the truck of one of them and were proceeding to deliver it when it appeared they were, or about to run, out of gasoline. Appellant was a passenger in the truck. They stopped at a certain crossroad and proceeded to make an examination. While several were standing around, one of the persons saw a bottle of whiskey in the pocket of appellant. Shortly thereafter appellant removed the bottle of whiskey from his pocket and hid it under his coat as he saw another car approaching where he was standing with these several people. Almost immediately he walked across to the truck, opened the cab door, and put the whiskey on the floor of the cab. When the approaching car stopped, a deputy sheriff, accompanied by a member of the highway patrol, was in it. The deputy had a warrant for the arrest of appellant on a charge of drunken driving the night before. There is conflict between the deputy sheriff and the highway patrolman as to whether or not he arrested appellant "before *793 searching the truck. It is unimportant here, we think.
Neither the deputy nor the highway patrolman saw the whiskey before it was taken from the cab of the truck, but they did see the motions and maneuvers of appellant and his opening the door of the cab and putting something therein from beneath his coat. The deputy sheriff, without a search warrant, proceeded to search the cab, and his doing so under such circumstances, and the admission of the evidence obtained thereby, is the basis of one of the assignments of error here. Appellant claimed that he had the truck rented, and, therefore, had dominion over it at the time when the search was made, and it was unlawful and against his rights. However, the evidence is clear that he did not have the truck rented, but that it belonged to one of the Martins, was being driven by one of them on their business of complying with the contract of sale of a cow and delivery thereof to the home of the appellant. Appellant, therefore, was not in a position to object to the search, or to the admission of the evidence secured thereby. Davis v. State,
Appellant says that he was in the mere transitory possession of the whiskey for the purpose of taking a drink, which had been offered to him by a negro just before the deputy and the patrolman came on the scene, and that therefore under the authority of such cases as Harness v. State,
The important issue to be determined in this case is a plea in abatement, based on the following facts: Some days after the scene at the truck, an affidavit against appellant was sworn to and lodged with a justice of the peace of District I of Leake County, Miss., where the crime occurred. However, the justice of the peace before whom this affidavit was made and with whom it was lodged was then at the county seat attending circuit court in District No. 2, which convened that day. This was in the morning. Later in the afternoon the grand jury of the county indicted appellant for the offense here involved and being the same identical offense charged in the affidavit. He was arrested under the indictment, but it does not appear from the record that he had then been arrested under the affidavit. He was tried and convicted in the circuit court, and from that conviction he appeals, assigning the errors discussed above and in addition raising the difficult question of jurisdiction between the circuit court and the justice of the peace courts. The rule with reference to the concurrent jurisdiction of the circuit and justice of the peace courts as to misdemeanors is Section 1831, Code 1942, and is construed in Milling v. State,
We are, therefore, faced with the issue, whether the lodging with the justice of the peace, under these circumstances, of the affidavit against appellant whereon no warrant had been issued, prevented the circuit court under such conditions from acquiring exclusive jurisdiction *795
to dispose of the case finally, as was done here. Section 1832, Code 1942, provides that: "On affidavit of the commission of any crime of which he has jurisdiction lodged with a justice of the peace, he shall issue a warrant for the arrest of the offender returnable forthwith or on a certain day to be named, and shall issue subpoenas for witnesses as in civil cases, and shall try and dispose of the case according to law; and, on conviction, shall order such punishment to be inflicted as the law provides." We have in a number of cases held that an affidavit is essential to confer jurisdiction on a justice of the peace to try and punish an offender, and that such affidavit is a prerequisite to prosecution for the foundation of the jurisdiction of the justice of the peace, and that the court has no jurisdiction without it. Bigham v. State,
The state attacked the jurisdiction of the justice of the peace on the ground that the affidavit was made and lodged with him while he was out of his court district. We do not think there is anything to this argument.
The appellant, in the circuit court, filed a plea in abatement on an agreed statement of facts, as above set out, and claimed that the rule governing the concurrent jurisdiction between the justice of the peace court and the circuit court deprived the circuit court of jurisdiction here, since the jurisdiction had become fixed and exclusive in the justice of the peace court before the indictment was returned and appellant arrested under the indictment. This plea in abatement was overruled by the court, and such action by the court is assigned as error here. We are of the opinion that the trial court was right.
We have reached a conclusion in harmony with the views expressed in the case of Hampton v. State, supra, and in Smithey v. State,
The judgment of the trial court is affirmed.
Affirmed.