* Headnotes 1. Criminal Law, 16 C.J., Section 166; 2. Criminal Law, 16 C.J., Section 599; 3. Criminal Law, 16 C.J., Sections 363, 394 (Anno). The appellant Cora Chandler was convicted in the circuit court of Clay county on a charge of unlawfully having in her possession intoxicating liquor. The appellant Will Mathis was convicted in the circuit court of Benton county of the same offense, and an appeal was prosecuted from each of these convictions.
The case of Cora Chandler v. State (No. 24627,) was affirmed without an opinion on a former day of this court, and a suggestion of error was duly filed, and the cause has been carefully reconsidered in all its aspects, but with particular reference to the point that the circuit court was without jurisdiction to proceed with the trial of the defendant on the indictment therein returned. This jurisdictional question was raised in the court below by plea, and the same question is presented in the case of Will Mathis v. State (No. 25064), and we will state the facts as developed in the two records in so far as they bear upon this point.
It appears from the record that an affidavit was made before a justice of the peace of Clay county charging the appellant Cora Chandler with the unlawful possession of intoxicating liquors. The appellant was arrested on this charge and brought before the justice of the peace for trial, whereupon, by agreement of all the parties, the case was continued and set for trial on the 24th day of *Page 533 October, 1924. Thereafter, and on the 29th day of September, 1924, a special term of the circuit court was convened, and the grand jury returned an indictment against appellant charging her with the same offense charged in the affidavit then on file in the justice of the peace court. After this indictment was returned, and on the 2d day of October, 1924, the county attorney telephoned the justice of the peace, requesting him to dismiss the prosecution in the justice court, and thereupon, without the presence, knowledge, or consent of the appellant, the justice of the peace entered an order of dismissal on his docket. On the 8th day of October thereafter the case was called for trial on the indictment in the circuit court, and appellant filed a plea to the jurisdiction of the court on the ground that the justice court was without power to dismiss the prosecution without the consent of the appellant, at any time before the 24th day of October, 1924, the date fixed for the trial of the case in the justice court, and that, since jurisdiction of the offense was still lodged in the justice court, a court of concurrent jurisdiction with the circuit court, the circuit court acquired no jurisdiction to proceed with the indictment for the same offense.
The record in the case of Will Mathis, appellant discloses that an affidavit was made before a justice of the peace of Benton county charging the appellant with the unlawful possession of intoxicating liquors, and he was arrested and brought before the justice of the peace for trial. The case was tried before a jury, and resulted in a mistrial, and thereupon the case was continued to a fixed date. On the date fixed for the second trial a jury was impaneled to try the cause, and, this jury being unable to agree on a verdict, a second mistrial was entered, and the case again continued to a fixed date. On the date fixed for the third trial a jury was summoned and the trial begun. However, before the impaneling of the jury was completed, the county attorney moved the court to discharge the jury, which was accordingly done, and the *Page 534 case was again continued to a fixed date. This last order continuing the case was entered on the 28th day of March, 1925, and on the 30th day of March, 1925, a special term of the circuit court was convened, and the grand jury returned an indictment against the appellant charging him with the same offense charged in the indictment then on file in the justice of the peace court. After this indictment was returned and the appellant arrested, the district attorney notified the court that an affidavit against the appellant for the same offense was pending in the justice court, and thereupon the circuit judge called the justice of the peace before him, and, having ascertained from him that his docket was at the courthouse, the circuit judge requested the justice of the peace to dismiss the prosecution in his court. This request of the judge was readily complied with, and thereupon the trial upon the indictment in the circuit court proceeded, resulting in the conviction from which this appeal was prosecuted.
It has been repeatedly held by this court, as reannounced in the case of Rodgers v. State, 101 Miss. 847, 58 So. 536, that, where concurrent jurisdiction is vested in two courts, the court first acquiring jurisdiction acquires exclusive jurisdiction, and that, if a proceeding is instituted in another court about the same subject-matter after one of the courts of concurrent jurisdiction has acquired control, the suit should be dismissed in the last court to acquire jurisdiction; but the court held in the Rodgers case, supra, that no defendant has a vested right to be tried in any particular court of concurrent jurisdiction, and, when one court of concurrent jurisdiction has acquired jurisdiction and voluntarily relinquishes it by a nollepros. or dismissal, the other court may proceed with the prosecution. The Rodgers case, however, is not decisive of the point here presented, for the reason that in that case the dismissal of the prosecution was in open court, when both parties were present, and upon the day fixed for trial in that court, to *Page 535 which the defendant was bound to appear. The right of a justice court to dismiss a prosecution on the day fixed for trial of the case, as was done in the Rodgers case, cannot be doubted, and it is settled by the decisions of this court that a defendant cannot complain of a valid dismissal or nolle prosequi; and if the dismissal orders in the cases at bar are valid, then, under the doctrine of the Rodgers case, the circuit courts were authorized to proceed with the prosecutions.
The decision of the question of the validity of these dismissal orders involves a consideration of the power of a justice court to take any final action affecting the rights of a defendant at any time other than that fixed by the process or orders of the court for the trial of the case. The idea that the justice courts are in continuous session for the transaction of criminal business and the trial of any particular case is a misconception. The jurisdiction and authority of justice of the peace courts to try criminal cases, and to fix the terms of its courts and the time for trial of criminal causes, is found in section 171 of the Constitution of 1890, and section 2749, Code of 1906 (section 2248, Hemingway's Code), conferring upon justices of the peace jurisdiction concurrent with the circuit court over all crimes whereof the punishment prescribed does not extend beyond a fine and imprisonment in the county jail, and in section 2750, Code of 1906 (section 2249, Hemingway's Code), and section 2752, Code of 1906 (section 2251, Hemingway's Code), which two latter sections provide for the issuance by a justice of the peace before whom a proper affidavit has been lodged of a warrant for the arrest of the offender, returnable forthwith, or on a certain day to be named, and authorize the arresting officer, or the justice of the peace before whom the offender is brought for trial, to require a proper bond or recognizance for the appearance of the offender for trial, upon adjournment from time to time and from day to day, or to subsequent day. *Page 536
Upon the proper execution and return of a warrant for the arrest of an offender, which, under section 2750, Code of 1906 (section 2249, Hemingway's Code), may be returnable forthwith or on a day certain, the justice of the peace may at once convene his court and proceed with the trial of the accused, and he may adjourn the trial from time to time and from day to day, or he may continue the case to a subsequent day, but when the accused is in court on the return day of the warrant, or on the day fixed for the trial, and the case is continued to a definite subsequent date, and the defendant discharged until such date, and the term of court then considering the case is adjourned, the court is then in effect in vacation in so far as the particular case is concerned, and the court is without power, in the absence of the defendant's consent thereto, to take any final action affecting the rights of the defendant until the date arrives to which the case has been continued.
An order or judgment of dismissal of a criminal prosecution is a judicial act, and, in order for such a dismissal entered by a justice of the peace in vacation to be valid, some constitutional or statutory authority therefor must be found; and since none exists we have reached the conclusion that the orders of dismissal in the cases at bar are nullities, and consequently the circuit court was without power to proceed upon the indictment.
In the case of the appellant Will Mathis, complaint is made of the failure of the court below to sustain a plea of autrefoisacquit, which plea was based upon the fact that, at the third trial of the appellant in the justice court, and after a jury had been qualified, but before the same had been accepted by both parties, the justice of the peace sustained a motion to discharge the jury and to continue the case to a later date. In view of section 22 of the Constitution of 1890, which provides that "there must be an actual acquittal or conviction on the merits to bar another prosecution," there is no merit in this assignment. *Page 537
In accordance with the views herein expressed, the suggestion of error in the case of Cora Chandler v. State, (No. 24627), will be sustained, and the cause reversed and remanded; and the case of Will Mathis v. State (No. 25064), will likewise be reversed and remanded.
Reversed and remanded.