State v. . Cale
63 S.E. 958
N.C.
1909
Check Treatment
Hoke, J.,

after stating tbe case: According to the strict rules of criminal procedure, tbe pleas of “not guilty” and “former conviction” could not be entertained and determined before one and tbe same jury; and it is further recognized and established that, on a plea of former conviction, when material questions of fact are involved in tbe issue, as in tbe case of dispute as to tbe identity of tbe parties, tbe determination of such plea is for tbe jury. But, as shown in a learned opinion by tbe present Chief Justice, in State v. Ellsworth, 131 N. C., 773, tbe plea of former conviction is not treated in many respects as one involving tbe substantial question of guilt or innocence of defendant, but as one approaching more nearly tbe determination of a civil issue, and by consent it may be entertained and determined at tbe same time witb a plea of not guilty, and, when so agreed upon, may be beard and decided by tbe court. There was no error, therefore, in tbe method by which, tbe cause has been determined. State v. Taylor, 133 N. C., 755; State v. White, 146 N. C., 608; State v. Ellsworth, 131 N. C., 773; State v. Akerman, 64 N. J. L., 99.

While we bold that tbe proceedings below have been in all respects regular, we do not take tbe same view of tbe facts *808 relevant to defendant’s plea of former conviction which seems to have impressed the learned judge who tried the cause below. From the facts it appears that defendant, convicted and fined in the present proceedings for a simple assault on Grover Harrell, has heretofore been convicted and fined for the same offense before a justice of the peace, and has paid the fine and the costs incident to that prosecution. The justice’s court had jurisdic-[ tion of the crime, the parties 'and the offense are the same, and, unless the proceedings before the justice were a nullity, the defendant has a constitutional right to go quit of further molestation by reason of this charge. A second conviction in such case would be contrary to the law of the land.

True, the warrant of the justice was unsigned and the deputation of the special officer was unwritten, and the statute in express terms requires the one (Revisal, sec. 3158), and by fair intendment would seem to require the other (Revisal, sec. 935), certainly when the precept is written, and, except in cases of great emergency, this last form should be observed; but both of these requirements are for the better protection of the officers, general or special, and for the protection and security of the defendant. When considered in reference to process by which a defendant may be brought into court on a criminal charge, they may be waived by him; and if a defendant voluntarily appears or is forcibly brought before a court having jurisdiction to hear and determine the cause, and such court does hear and decide it, whatever may be the rights of the defendant against the officers, in the absence of other objection, the defects suggested in the process do not in any way affect the validity of the .judgment rendered. Commonwealth v. Henry, 61 Mass., 512; Bishop’s New Criminal Procedure, sec. 235, subsec. 1;' 12 Cyc., 303.

In Commonwealth v. Henry, supra, Metcalf, J., for the Court, said: “As the magistrate had jurisdiction, and everything was right except the process, we are of opinion that the defendant, by not objecting to the process while before-the magistrate, waived all objections to it, and the ruling of the court was correct.”

And in Bishop, supra, the author says: “From the principles *809 stated, it seems, if a warrant of arrest is insufficient or void, yet, if the accused person is brought before the magistrate under it, he is not therefore to be set at liberty, whatever may be his rights as against the officer and others connected with its proceedings.”

Nor do we think it permissible to hold the proceedings before the justice void, under the doctrine recognized and applied with us in the case of State v. Moore, 136 N. C., 581, to the effect that a conviction of a person before a justice of the peace which is collusive and not adversary is void. In that case it ajipeared and was admitted that' defendant swore out a warrant against himself, and that the justice, without notice to the injured party or to anyone else, and without hearing any evidence except defendant’s own statement, disposed of the case. And on these facts Justice Walker, in his well-considered opinion, states the principle and the reason upon which it is properly made to rest, as follows: “If one procures himself to be arrested and prosecuted for an offense which he has committed, thinking to get off with a slight punishment and to bar any future prosecution carried on in good faith, and if the proceeding is really instituted and managed by himself, he is, while thus holding his fate in his own hand, in no jeopardy. The State is no party in fact, but only such in name. The magistrate, under such circumstances, adjudicates nothing. 'All is a mere puppet show, and every wire is moved by the defendant himself.’ The judgment, therefore, is a nullity and is no bar to a real prosecution. 1 Bishop’s Or. Law (6th Ed.), sec. 1010. In Holloran v. State, 80 Ind., 586, the Court fully sustains and approves the doctrine as thus substantially laid down by Bishop, and adds: ‘If the whole case is controlled and managed by the accused, there are no adverse parties, and when this is so, there cannot in the true sense of the term be a former conviction or acquittal.’ ”

But no such facts are presented in the case we are considering. • It is true,.the defendant is said to have.first notified the magistrate of the occurrence, but the ease states the facts as to this notice to be that defendant told the justice he had had a fight and would have to suffer for it, and only asked if a warrant was issued it would be made returnable at 12 o’clock, as *810 defendant and bis bands would at tbat bour be in from tbe woods, where they were at work. Tbe affidavit was made, at tbe instance of tbe justice, by one Crisp, wbo is marked on tbe warrant as a State’s witness, several eyewitnesses of tbe occurrence were summoned and examined, and Grover Harrell, tbe assaulted party, and bis brothers, wbo bad been present at tbe fight, and bis father, were notified to attend, and tbe case was delayed some time for their coming; and, referring to'the trial, tbe case further states: “None of them (Grover Harrell, bis brothers, etc.) appeared, and tbe justice examined several witnesses wbo saw tbe fight. Two of them- were not of kin to tbe defendant, but were cousins of Grover Harrell, and also Dr. C. B. "Walton, wbo bad seen and talked with Grover Harrell since tbe fight occurred.” And thereupon defendant was adjudged guilty and tbat be pay a fine of $1 and costs amounting to $6.65. As tbe case appears to us, there was no evidence of collusion, and there does not seem, wittingly or unwittingly, to have - been any imposition, for tbe court made tbe same disposition of tbe case as tbe trial justice. We are of opinion, therefore, and so bold, tbat there was a valid trial and disposition of this cause before tbe justice of tbe peace; and, on tbe facts presented and agreed upon, tbe plea of former conviction. should have been determined in defendant’s favor.

This will be certified, to tbe end tbat tbe verdict of guilty rendered by tbe jury be set aside, tbe plea of former conviction sustained, and tbat defendant go without day. State v. Taylor, supra.

Reversed.

Walker, J., concurs in result.