The indictment charged the respondent with the crime of breaking and disturbing the public peace, to which he pleaded in bar a former conviction for the same offence. To this plea, the state’s attorney filed a general demurrer. The demurrer was sustained and the plea adjudged insufficient, to which the respondent excepted.
It appears from the record of the claimed former conviction set forth in the plea, that, on the 1st day of August, 1894, a prosecution was commenced before a justice of the peace upon the complaint of a grand juror for the town of Barre ; that the respondent was brought before the juslice, and the cause was continued to August 6, 1894, on which day the respondent appeared and the case was, by agreement of attorneys, held open. It does not appear that anything further was done until October 5, 1895, when the re
In passing upon the sufficiency of the respondent’s plea, it becomes necessary to determine what was intended by the words, “held open,” in the justice’s record of August 6, 1894. At the time this record was made, the justice could have adjourned the case for any time not exceeding three months. R. L., s. 1069. With this limitation upon the power of the justice to adjourn the cause, it is not probable that it was intended by the words “held open,” that the cause should stand open, without any limitation, or for a longer time than the justice could have then adjourned it. We think, by the use of these words, it was intended that the cause should be held open tor a time not exceeding the time the justice could have then adjourned it and that, at the expiration of this time, without an adjournment or any action by the justice, the cause was no longer pending. The cause was not adjourned after August 6, 1894, and was not again called up until after the grand juror who signed the complaint was dead, nor until after the expiration of more than three months. This delay, without any action being taken, worked a discontinuance of the cause; and, when the respondent appéared before the justice, on the 5th day of October, 1895, and pleaded guilty, the prosecution by indictment in the court below was the only prosecution then pending against him. In Brown v. Story, 9 Vt. 118, it is held that the absence of a justice of the peace from the place to which a cause has been adjourned by him, for the
At the time the respondent appeared before the justice, there was no complaint before the justice, nor was any complaint then pending against the respondent. The grand juror who signed the complaint had been dead more than four months, and, by the delay of more than three months in bringing the case to a hearing, without a continuance or any action being taken, the complaint had become inoperative and of no effect. The justice could not take juidsdiction of the offence that the respondent pleaded guilty to, without a formal complaint. There being no complaint pending before him, he acted without jurisdiction, and his judgment and sentence is void and not a bar to the prosecution in the court below. In State v. Wakefield, 60 Vt. 618, the complaint charged intoxication, to which the respondent pleaded a former conviction for the same offence before a justice of the peace; and it was held that a formal complaint was necessary to confer jurisdiction, and that, for want thereof, the action of the justice was not res adjudicata as against
Art. 11, chap. 1, of the constitution of the state provides that warrants, without oath or affirmation first made, affording sufficient foundation for them, and whereby any officer ■or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are not to be granted. It is essential that the court taking cognizance of a criminal cause, not only have jurisdiction of the cause, but that its jurisdiction be invoked in the manner sanctioned by law. Therefore, if the crime of which the respondent has been convicted, is one for which he could be held to answer only upon the presentation of an indictment or complaint to the court, properly verified, and no such indictment or complaint was before the court, his conviction is void.
Judgment that there is no error, and that the respondent take nothing by his exceptions.