Smithey v. State

Mayes, J.,

delivered the opinion of the court.

At the July term, 1906, of the circuit court Washington Smithey was indicted for unlawfully cohabitating with Susan Bussell. The indictment was returned and filed on July 27, 1906. At the January term, 1907, the case came on to be heard, and Smithey pleaded a former conviction of the same offense before a justice of the peace of the proper district. A written agreement is filed with the record, whereby it is agreed “that on the 7th day of August, 1906, and after the indictment had been returned against Smithey, and before his arrest, the defendant was charged on an affidavit before W. J. Bobbins, a lawfully elected and qualified justice of the peace of the Fifth district of Union county, Miss., with adiiltery and unlawful cohabitation with Susan Bossell, alias Brooks; and he was arraigned before said justice of the peace on said charge and pleaded guilty thereto, and the court fined the defendant the sum of $10 and costs, and the defendant there paid, said fine and costs, and was discharged, and the said offense was *260 the same offense as charged in- the indictment in this case.”' There was no charge of fraud, nor does it appear that defendaut had any knowledge of the fact that the indictment in the circuit court was pending at the time of the trial in the justice’s court.. Code of 1906, § 1029, in providing a penalty for unlawful cohabitation, provides that, where a party is convicted, he shall be punished by a fine “in any sum not more than five hundred dollars each, and imprisoned in the county jail not more than six months,” etc. From this it is manifest that the judgment of the justice of the peace was not such judgment as the law required, since he only imposed a fine, while the statute required that he fine and imprison.

On the trial the court gave the following instruction for the state, viz.:, “The court instructs the jury, for the state, that although the jury may be satisfied from the evidence that Washington Smithey was arraigned before W. J. Bobbins, a justice of the peace, on the identical charge upon which he is now being tried, and was convicted, yet the jury have no right to consider that fact in connection with this case, if the jury believe from the evidence beyond all reasonable doubt that the indictment in this case was returned to the court by the grand jury and filed by the circuit clerk before the affidavit was filed in the court of said W. J. Bobbins.” This instruction was fatal error. The-crime was one over which the justice of the peace had jurisdiction concurrent with the circuit court. Until arrest under the indictment, in the absence of proof or charge of fraud, the jurisdiction had not attached in the circuit court, so as to exclude the jurisdiction of the justice of the peace. Whenever there is an indictment and arrest, in either court, jurisdiction is then exclusive; but until then, in tire absence of any allegation and proof of fraud or collusion, either court may proceed, and a conviction can be subsequently pleaded in bar of a second prosecution, though the indictment was returned in the circuit court before proceedings were instituted in the justice’s court. 17 Am. & Eng. Ency. (2d ed.) 573.

*261 The case of State v. Tisdale, 19 N. C. 159 , is a ease directly in point. In that case it is shown that the superior court and the county court had concurrent jurisdiction on a charge of assault and battery. At the spring term of the superior court, in 1836, Tisdale was indicted for an assault and battery, but there was no arrest under the indictmnet. In August succeeding the indictment T'isdale was tried in the county co-urt and there convicted of the same offense for which he was under indictment in the superior court, and when in September following he was placed on trial under the first indictment in the superior court he pleaded a former conviction in the ctfunty court. It was contended in that case, as in this, that by the finding of the indictment merely jurisdiction attached in the superior court, to the exclusion of all other courts, and it was further contended that it was a fraud in law for the county court to entertain jurisdiction -of the offense while an indictment was pending in the superior court; but tire court said: “If there can be a fraud, in a legal sense, in prosecuting and convicting an offender in a court on which the jurisdiction is conferred by law, as a competent and fit tribunal to try and punish criminals, it is clearly not to be presumed, without an averment of it in the record, upon the single fact that a bill had been previously found for the same matter in another court. In the particular ease before us the defendant had no day in the superior court; he having neither been arraigned, nor even arrested, on the bill in that court. Until he had a day in court on that indictment, he was not vexatus thereby, and stood in relation thereto on the same footing as if he had been put without day by a nolle prosequi thereon, in which last case it is laid down in McNeill’s case that ho would be amenable on another indictment in any court having jurisdiction of the offense.” To the same effect is the case of State v. Williford, 91 N. C. 528 .

No bad faith is shown in either the pleadings or the proof, and, if there had been, the instruction given for the state eliminates consideration of this from the jury. The instruction denies *262 tbe defendant the right to plead former conviction, if the jury merely believe from the evidence that the indictment was found in the circuit court prior to the proceedings instituted in the justice’s court, without reference to whether or not there had been any arrest of defendant under the indictment first returned,, without reference to whether he had knowledge of the indictment and was colluding to defeat adequate punishment, and without reference to the good faith of the proceedings in the justice’s court.

It is further shown in the record that the justice of the peace,, after convicting defendant of the crime charged in the indictment, only entered a fine of $10 and costs against him; and it is claimed that, although the defendant was convicted, the sentence was void, and the conviction could not, therefore, be pleaded in bar of another prosecution for the same offense. Under Code 1906, § 1029, the penalty provided for a person convicted of unlawful cohabitation is a fine of not moi’e than $500 and imprisonment in the county jail not more than six months, etc. It is not charged or proved that the justice of the peace colluded with the defendant for the purpose of defeating punishment under this-conviction, nor does it appear in any way that the justice of the peace designed to enable the defendant to escape proper punishment; but the wrong sentence is a mere error on the part of the justice of the peace. This being the case, and the affidavit on which defendant was convicted being a valid charge, we do noi think that the fact that the justice of the peace before whom the party was convicted did not perform his duty under the law, furnishes any reason why the defendant should be barred from pleading the former conviction. It was by no fraud on the part of the defendant, or collusion, or fault; but the error was purely that of the presiding justice in failing to perform his duty as required by the statute. It is not a question of proper sentence which enables a party to plead a former conviction, but it is the fact that there has been a conviction of the same offense, and if" there has been a conviction of the same offense by a court of com *263 petent jurisdiction the former conviction may be pleaded. "Where a defendant in good faith submits himself for trial before a court of competent jurisdiction, and is convicted, he stands in no default under the law, and if the court itself makes a mistake, and enters up a judgment which it had no right to do, the dereliction is that of the court, and not the defendant.

The justice of the peace, not having imposed the sentence required by law, may and should issue an alias capias for defendant and impose a proper sentence.

Reversed and remanded.