State v. Hughes

Mar 15, 1910
Versions:51 So. 464
96 Miss. 581
Mates, J.,

delivered the opinion of the court.

This is an appeal prosecuted on behalf of the state. It appears that one George W. Hughes was charged with embezzling certain funds belonging to the Jackson Cotton Oil Company, of Jackson, Hinds county, Miss. The charge was made in an affidavit before one C. W. Brooks, a justice of the peace of Attala county, the place where the actual embezzlement is charged to have occurred, and where Hughes then lived. A warrant was issued on this affidavit, and Hughes arrested thereunder, and a committing trial had before the justice of the peace, resulting in the justice binding over Hughes, under bond, to appear at the nest term of the circuit court to answer any charge that might be preferred by the grand jury. When court convened in Attala county, the grand jury failed or refused to indict, and Hughes was liberated from the bond, whereupon Hughes was subsequently indicted in the circuit court of Hinds county, under section 1402, Code 1906, which provides that, when an embezzlement is committed, it may be prosecuted either in the county in which the money or property, or some part thereof, was received or converted, or in the. county in which the party charged was under obligation to pay over the funds or property embezzled. When the case was called for trial in the circuit court of Hinds county, several pleas were filed by Hughes, the purport of which was to set up the fact the Hinds county court was without jurisdiction to prosecute the cause, for the reason that a prosecution for the same offense had already commenced in another county, thus taking from the Hinds county court any right 'it may have had to acquire any jurisdiction of the offense.

Under section 1406, Code 1906, it is provided that “when an offense is committed partly in one county ,and partly in another, or where the acts, effects, means, or agency occur in whole or in part in different counties, the jurisdiction shall be in either *585-county in wbicb said offense was commenced, prosecuted, or •consummated, where prosecution shall be first begun.” It will he seen that the sole question presented is: Was the affidavit be* lore the justice of the peace, followed by the issuance of a warrant for the arrest of Hughes and a committal trial, binding him over under bond to answer any charge by indictment at the next -term of the circuit court, the “commencement of a prosecution,” within the meaning of the law, so as to give the Attala court exclusive jurisdiction, when it subsequently appears that no indictment was returned ? In short, in order to constitute the “commencement of a prosecution” for felony, must there be an indictment before the courts of the county in which the prosecution is begun shall have exclusive jurisdiction? The trial court thought not, sustained the pleas, and •discharged the defendant, and in so doing, we think, rendered a correct judgment.

The question in this case was practically settled by the case of Coleman v. State, 83 Miss. 290, 35 South. 937, 64 L. R. A. 807. It is true that the question in that case is not identical with this; but the principle is the same. In the Coleman case the question arose on an indictment hy a grand jury, and in this ease it is upon an affidavit charging a felony in a committing court, followed by the failure of the grand jury to indict; but clearly there was a “commencement of the prosecution” in Attala county in every true sense, and that county alone has jurisdiction. The question is the same, whether it arises upon an affidavit or indictment, and it is not necessary that the court in which it commences shall have full jurisdiction to finally dispose of the charge. The policy of our statute in regard to this is clearly outlined in section 1415 of the Code, which provides that “a prosecution may be commenced * * * by the issuance of a warrant, or by binding over or recognizing the offender to compel his appearance to answer the offense, as well as by indictment or affidavit.” It is seen that this sec*586tion makes no distinction between an indictment añd. an affidavit. It is quite true that this particular section is dealing-with the question as to- what shall be considered the commencement of a prosecution when the statute of limitations is sought-to be invoked -as a bar; but it shows the policy of the law, and is equally applicable to determine whether or not a prosecution has been “commenced” in one county, so as to preclude jurisdiction in another, when the offense charged is one of which, one 'or more counties may have jurisdiction.

We approve the judgment of the court below.

Affirmed.