Opinion
No. 27127.
October 1, 1928.
CRIMINAL LAW. Criminal case, in which justice was disqualified because of interest, must, on appeal to county court, be tried de novo ( Hemingway's Code 1927, sections 66, 69, 729; Constitution 1890, section 165).
Judgment of the justice of the peace, in a case in which he was disqualified because of interest therein under Constitution 1890, section 165, is not void, and the county court on appeal thereto must try it de novo in accordance with Code 1906, section 86 (Hemingway's Code 1927, section 66), Laws 1924, chapter 246, section 1 (Hemingway's Code 1927, section 69), and Laws 1926, chapter 131, section 5 (Hemingway's Code 1927, section 729), and the fact that justice may be disqualified in trying it because of interest therein becomes then of no consequence.
APPEAL from circuit court of Forrest county, HON. R.S. HALL, Judge.
J.A. Lauderdale, Assistant Attorney-General, for the state.
Cited: Tumey v. Ohio, 71 L.Ed. 749; Hitt v. State, 149 Miss. 718, 115 So. 879; Jones v. State, 26923, 115 So. 886; Foote v. State, 26924, 115 So. 886; Arnold v. State, 149 Miss. 738, 115 So. 885; Hamby v. State, 27020, 116 So. 447.
Robt. L. Bullard, for appellee.
The precise question presented by this appeal was not passed on in any of the cases cited in the brief by the state. It is this:
On appeal from a justice court has the county court, or circuit court, any authority to try a case de novo which the justice of the peace had no authority to try?
That question has been settled in the negative by previous decisions.
In the case of Hitt v. State, cited by the state, there was no finding that the justice of the peace was without authority to try it. The same was true in Foote v. State, and Arnold v. State, and the trial de novo in the circuit court was correct in each case.
See Adam v. Fidelity Mutual Life Ins. Co., 94 Miss. 433; Dufor v. Chapotel, 75 Miss. 656.
J.A. Lauderdale, Assistant Attorney-General, in reply for the state.
This court has repeatedly held that the fact that a judge may be disqualified does not affect the jurisdiction of the court. This was held in the Hitt case, 115 So. 879, and the cases there cited.
The judgment of the county court is clearly erroneous in this case because it undertakes to discharge the defendant from custody. Even though the justice of the peace was disqualified and was without jurisdiction, there can be no question but that there was a good, valid and legal affidavit on file charging the defendant with the crime. This of itself was sufficient to prevent the court from discharging the defendant.
However we do not rely upon this to get this case reversed, but stand squarely upon the proposition of law that the appeal by Dearman from the justice court to the county court clothed the county court with full and complete jurisdiction to try the cause.
An affidavit charging the appellant with a misdemeanor was lodged with a justice of the peace, and when the cause came on for trial the appellant objected in writing to his proceeding therewith, on the ground that he was disqualified from trying the appellant, for the reason that it was "to the interest of the said justice of the peace to convict the defendant on account of the fees and costs that may be collected by him from the defendant only in case he convicted the defendant." This motion was overruled by the justice of the peace, and the appellant was convicted of the misdemeanor charged. He appealed to the county court, where he filed a motion to dismiss the case, on the ground that the justice of the peace from whose court it was appealed was disqualified from trying it for the reason hereinbefore set forth. This motion was sustained by the county court, and the case was dismissed. The case was then carried by the state to the circuit court, where the judgment of the county court was affirmed, and the state has brought the case to this court.
The judgment of a justice of the peace in a case in which he is disqualified because of interest therein, under section 165 of the State Constitution, is not void. Dixon v. Rowland, 143 Miss. 270, 108 So. 807. When such a case is appealed to the county court, that court should try it de novo (section 5, chapter 131, Laws 1926, Hemingway's 1927 Code, section 729; section 1, chapter 246, Laws 1924, Hemingway's 1927 Code, section 69, section 86, Code of 1906, Hemingway's 1927 Code, section 66), and the fact that the justice of the peace may have been disqualified from trying it because of interest therein becomes then of no consequence, for the reasons set forth in Hitt v. State (Miss.), 115 So. 879.
The judgment of the circuit court affirming the judgment of the county court will be reversed, and the case will be remanded to the circuit court, with direction to reverse the judgment of the county court, and then dispose of the case in accordance with the provisions of section 5, chapter 131, Laws 1926, Hemingway's 1927 Code, section 729.
Reversed and remanded.