Opinion
No. 37779.
January 8, 1951.
1. Criminal procedure — oral testimony as to former jeopardy — conflicting entries on docket of justice of the peace.
When the printed entry on the docket of the justice of the peace recited that "this cause coming on to be heard and the court having heard the evidence it is therefore considered by the court that defendant is" and this recital was immediately followed by a handwriting entry that "On motion of the county attorney, this case is hereby dismissed without prejudice", signed by the justice of the peace, oral testimony was properly taken to settle the doubt as to whether the accused had actually been in former jeopardy.
2. Criminal law — former jeopardy.
In order for a plea of former jeopardy to avail it must appear that the defendant was actually acquitted or convicted in a former trial on the merits of the crime for which he is again sought to be convicted.
3. Criminal law — former jeopardy — judgment of dismissal without predudice.
The use in a judgment of a justice of the peace of the words "without prejudice" in dismissing a criminal charge, serves to prevent the dismissal from operating as a bar to a new prosecution on the same charge. Sec. 22, Const. 1890.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Scott County; PERCY M. LEE, Judge.
George H. Ethridge, Assistant Attorney General, for appellant.
Two questions arise for consideration of this Court. First, as to whether dismissal without prejudice precludes a subsequent prosecution for the offense charged originally and whether the defendant may again be tried under the provisions of Section 22 of the State Constitution. Second, whether under the evidence involved in this case there was an affidavit before the justice of the peace and if an affidavit before the justice of the peace charging the crime is necessary for the justice of the peace to exercise jurisdiction. It is the position of the State here that if either or both of these conditions are necessary to the jurisdiction of the justice of the peace to try the case that on this record the holding of the court below must be reversed because, first, the dismissal "without prejudice" is not a judgment of acquittal, but the case stands as though no trial had been had before the justice of the peace and, consequently, no judgment of former acquittal is sustained by this record.
The meaning of "without prejudice" as used in this judgment is defined in a large number of cases, beginning on page 439 of Vol. 45, Words and Phrases. Among these cases cited in Words and Phrases is a Mississippi case of W.T. Raleigh Company v. Barnes, 143 Miss. 597, 109 So. 8, 9, which held that "Only effect of words `without prejudice' in order dismissing suit is to prevent dismissal in operating in any suit which plaintiff might desire to bring on same cause of action". There are many other definitions from other courts in Vol. 45, Words and Phrases, which hold to the same effect among which is the definition by the Rhode Island Supreme Court in Taylor v. Slater, 21 R.I. 104, 41 A. 1001, 1003. "A dismissal without prejudice leaves the parties as if no action had been instituted. It gives to the complainant the right to state a new and proper cause if he can; but it takes away no right of defense to such suit on any ground other than that of the judgment as a bar."
Our Court in the case of Lovern v. State, 140 Miss. 635, 105 So. 759, held that, under plea of former jeopardy (acquittal or conviction) it must appear that the defendant was actually acquitted or convicted in the former trial on the merits of the crime for which he is again sought to be convicted. Const. of 1890, Sec. 22. It was also held in that case: "Parol evidence held admissible to settle doubt as to whether accused had been in former jeopardy. Where it is doubtful, from the recitals of a judgment dismissing a case and discharging the defendant therein pleaded in bar of a second prosecution for the same offense, whether the defendant was tried and convicted on the merits, such doubt may be removed by parol evidence."
This case seems to make it mandatory to reverse the holding of the court below and to remand the case for a trial of the defendant upon the indictment. We call the Court's attention also to the case of Chandler v. State, 140 Miss. 524, 106 So. 265, in which it was held: "Court first acquiring exclusive jurisdiction may relinquish it by valid order of dismissal. One of two courts of concurrent jurisdiction may, by valid order of dismissal, relinquish its exclusive jurisdiction, acquired by criminal prosecution being first instituted therein, so that the other court may then proceed with prosecution of the same offense instituted therein before such order."
See Conwell v. State, 124 Miss. 716, 86 So. 876; Harris v. State, 158 Miss. 439, 130 So. 697. Under these cases the effect of the words, "dismissal without prejudice" left the crime to be investigated and tried in a subsequent suit at the discretion of the State and the grand jury had full power to indict in circuit court and the circuit court had full power to try the defendant as though no proceeding had ever been taken in the justice of the peace court.
On the second proposition, I contend that under Sec. 1832 Code 1942, an affidavit was essential to the justice of the peace taking any jurisdiction to try the defendant and it would not matter if there was a conviction on evidence in open court if there was no affidavit as a foundation for the court exercising its judicial powers and rendering any judgment. Sec. 1832 Code 1942 reads as follows: "Practice in criminal cases. — On affidavit of the commission of any crime of which he has jurisdiction lodged with a justice of the peace, he shall issue a warrant for the arrest of the offender returnable forthwith or on a certain day to be named, and shall issue subpoenas for witnesses as in civil cases, and shall try and dispose of the case according to law; and, on conviction, shall order such punishment to be inflicted as the law provides."
An affidavit is essential to confer jurisdiction to try and punish an offender. Bigham v. State, 59 Miss. 529; Bramlette v. State, 193 Miss. 21, 8 So.2d 234. Other authorities can be cited to show that in the absence of an affidavit a judgment is a nullity.
Powell v. State, 196 Miss. 331, 17 So.2d 524; Smith v. State, 198 Miss. 788, 24 So. 285.
I, therefore respectfully submit that the judgment below should be reversed and the appellee placed on trial on the indictment preferred by the grand jury. The effect of Sec. 22 of the State Constitution of 1890 was to radically change the law as to former jeopardy and by the expressed provisions of that section, it required an actual acquittal or an actual conviction to preclude the subsequent prosecution. Prior to 1890, when a defendant was placed on trial and evidence taken, he was placed in jeopardy unless he consented to a mistrial being entered, and the long line of cases prior to 1890 are no longer authority as to when jeopardy began and the effect of not proceeding until the trial was furnished to avoid former jeopardy have been overruled by Sec. 22 of the Constitution and the cases above cited.
Roy N. Lee, for appellee.
A court of record speaks through its minutes. The minutes in a criminal case are taken as conclusively true. This applies regardless of the fact that the State and its officials may aver error, mistake or irregularity in the judgment. State v. Taylor, 23 So. 34, is directly in point.
Oliver v. Miles, 144 Miss. 852, 110 So. 666, and Lackey v. Railroad, 102 Miss. 339, 59 So. 97, reiterate the principle laid down in State v. Taylor, supra, and hold that the court can only speak through its minutes, even though an error or mistake may be made which might change the course of the trial.
The judgment cannot be impeached by oral or other evidence. Keene v. State, 194 Miss. 233, 11 So.2d 899.
Lovern v. State, 140 Miss. 635, 105 So. 759, relied on by the distinguished Assistant Attorney General, does not apply. In that case the judgment was indefinite in that it did not appear from the judgment whether evidence was introduced or considered. The judgment did not recite an acquittal or conviction. In the case at bar, the judgment definitely recites that the case came on to be heard, that evidence was heard and considered, and that the case was dismissed. An acquittal of the appellee is shown by the judgment. Under the cases cited above, that judgment cannot be impeached or averred against.
The words "without prejudice" are meaningless and constitute surplusage when considered with the entire judgment. This Court recognizes, and has often held, that liberal rules of interpretation must of necessity apply to judgments of justices of the peace, and mere matters of form will not invalidate them. Keene v. State, 194 Miss. 233, 11 So.2d 899; Ladnier v. Ladnier, 64 Miss. 368, 1 So. 492.
Appellee was indicted at the March 1949 term of the Circuit Court of Scott County for the unlawful sale of intoxicating liquor. She filed a plea of former acquittal which was sustained by the lower court and the State appeals.
The judgment upon which the plea is based was entered on the docket of a justice of the peace. (Hn 1) In the docket space for entry of judgment there is printed "This cause coming on to be heard and the court having heard the evidence, it is therefore considered by the court that defendant is . . ." Immediately following this printed part of the docket the following entry was made in the handwriting of the county attorney and signed by the justice of the peace on March 10, 1949, which was a regular court day: "On motion of county attorney, this case is hereby dismissed without prejudice."
Oral testimony was taken, (and properly so as held in Lovern v. State, 140 Miss. 635, 105 So. 759) to settle the doubt as to whether the accused had actually been in former jeopardy, and by this evidence it was established that the aforesaid judgment was entered at a time when the grand jury was in session but before it had voted and returned the indictment in question. In order to remove any question of conflict in the jurisdiction of the two courts the county attorney went to the justice court and searched for an affidavit against appellee and neither he nor the justice of the peace was able to find any and thereupon the county attorney entered the case upon the docket, all entries being in his handwriting except the signature of the justice. It was fairly well established by the evidence that there had never in fact been any affidavit made against appellee before the justice of the peace, but we pass to a decision without consideration of that evidence as we deem it immaterial.
In Lovern v. State, supra, it was held that (Hn 2) "In order for a plea of former jeopardy to avail, it must appear that the defendant was actually acquitted or convicted in a former trial `on the merits' of the crime for which he is again sought to be convicted." The judgment in that case recited "and, it appearing that there was insufficient evidence to convict the defendant, the case was dismissed and the defendant discharged." The proof showed, however, that the case was not tried on the merits but was dismissed at the request of the county attorney after a conference with the witnesses. The judgment of the justice of the peace in the case at bar shows that it was dismissed without prejudice and appellee relies solely upon the recitals of this judgment as affording her an immunity from trial upon the indictment.
(Hn 3) The use of the words "without prejudice" serves to prevent the dismissal from operating as a bar to any new suit or prosecution on the same charge. W.T. Raleigh Co. v. Barnes, 143 Miss. 597, 109 So. 8. Moreover, Section 22, Constitution of 1890, provides "No person's life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution." Here there was plainly no acquittal on the merits. Conwill v. State, 124 Miss. 716, 86 So. 876; Harris v. State, 158 Miss. 439, 130 So. 697.
We are therefore of the opinion that the lower court erred in sustaining the plea of former jeopardy and its judgment will accordingly be reversed and the cause remanded.
Reversed and remanded.
Lee, J., not participating.