I concur in the majority opinion upon one ground alone, namely, that the judgment appealed from was a judgment of the circuit court, a court of competent jurisdiction, where appellant received a fair and impartial trial by a court presided over by a disinterested judge; in other words, a court which furnished appellant due process.
I cannot give my assent to the other grounds upon which the majority opinion places the decision of the court. Under the Tumey case, I can see no escape from the conclusion that justices of the peace of this state, sitting for the trial of misdemeanors, are not judicial tribunals, they are not courts under the due process clause of the Fourteenth Amendment to the Federal Constitution. The pittance of the maximum of sixty dollars a year allowed by our statute out of the county treasuries to justices of the peace for their lost costs, does not save them from interest in the result of such prosecutions. It seems to me that this is too apparent to require discussion. *Page 736 And, by the way, that statute is of doubtful validity under section 361 of our Constitution which provides that:
"The expenses of criminal prosecutions, except those beforejustices of the peace, shall be borne by the county in which such prosecutions shall be begun." (Italics mine.)
The majority opinion stresses the fact that, under the laws of this state, a defendant convicted of a misdemeanor before a justice of the peace is entitled to an appeal, without bond, to the circuit court, where he gets a trial de novo; but it overlooks the requirement of section 87, Code of 1906 (section 69, Hemingway's 1927 Code), that, in order for a defendant so convicted to supersede the judgment of the justice of the peace, he must give a supersedeas bond. If he fails to give asupersedeas bond, he might suffer the full penalty of the law imposed by the justice of the peace before his appeal to the circuit court could be heard. To illustrate: A defendant is convicted in a justice of the peace court of the unlawful sale of intoxicating liquor. The justice of the peace imposes a penalty of ninety days' imprisonment. He appeals to the circuit court, but is unable to give a supersedeas bond. The circuit court sits more than ninety days after the judgment of the justice of the peace is rendered. Therefore, before he gets a trial denovo in the circuit court, he has been forced to suffer the full penalty of the law. So far as a defendant, so situated, is concerned, he is without remedy. His appeal to the circuit court is fruitless. He has suffered the penalty of the law imposed by a court which, under the Tumey case, failed to furnish him due process.
However, the case here for consideration is not that kind of case. The appellant appealed to the circuit court withsupersedeas. He did not suffer the penalty of the law imposed upon him by the judgment of the justice of the peace. He was relieved of that by his appeal to the *Page 737 circuit court with supersedeas. It seems, therefore, the fact that the justice of the peace before whom appellant was tried denied him due process was without prejudice to appellant. He was able, by his appeal and supersedeas bond, to take his case to a court which did furnish him due process. This view seems to be borne out by the cases of Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969; and Ex parte Meeks (D.C.),20 F.2d 543, which is the decision of a Federal District Court but is a well-reasoned opinion. These authorities seem to justify the conclusion that, if under the judicial system of a state there is provided a court in which a defendant charged with crime is afforded due process, to which he may resort, the requirements of the due process clause of the Fourteenth Amendment to the Federal Constitution are met.
In the consideration of this question, it should be kept in mind that the appellant in this case is not complaining of the judgment of the justice of the peace before whom he was convicted, but of the judgment of the circuit court to which he appealed from that conviction. If he had been unable to supersede the judgment of the justice of the peace, this would have been a very different case.