dissenting. It is my firm conclusion that the Writ of Prohibition should not issue in this case, since Duncan’s remedy by appeal is adequate.
We have this situation. The petitioner, Yernon Duncan, was charged in the Municipal Court of Little Rock with two misdemeanors: (1) disturbing the peace; and (2) refusing to obey the lawful orders of an officer of the United States Army, etc. Duncan was tried in the Municipal Court and found not guilty of disturbing the peace, but found guilty of refusing to obey the lawful orders of an officer of the United States Army, etc. Prom that conviction Duncan appealed to the Pulaski Circuit Court. The record contains no motion made in the Municipal Court to set aside the conviction.
If Duncan had thought the Little Rock Municipal Court was without jurisdiction to try him on the charge of refusing to obey the lawful orders of an army officer, then why did he not seek a Writ of Prohibition from the Pulaski Circuit Court under Art. YII, § 14 of our Constitution? No: he stood trial in the Municipal Court and then appealed. So far as this record shows, it was a straight appeal to the Pulaski Circuit Court. The point I make is, that Duncan invoked the jurisdiction of the Pulaski Circuit Court. Duncan cannot say the Pulaski Circuit Court is without jurisdiction to hear the misdemeanor case on appeal, because he invoked that jurisdiction.
In the Pulaski Circuit Court Duncan filed a motion to reverse the judgment of conviction of the Municipal Court; and when that motion was overruled, Duncan applied to this Court — in the present proceeding — for a Writ of Prohibition. Having invoked the jurisdiction of the Pulaski Circuit Court by appeal, Duncan should proceed with his trial on the misdemeanor charge in the Circuit Court; and then, if still dissatisfied, he can appeal to the Supreme Court. It is against all orderly processes for Duncan to invoke the jurisdiction of the Pulaski Circuit Court and then seek to prohibit the jurisdiction of the Pulaski Circuit Court; and yet that is the inconsistent position in which he finds himself in his attempt to prosecute this Petition for Writ of Prohibition.
Duncan says that his remedy by appeal is inadequate and incomplete and therefore he is entitled to prohibition. "When a person demurs to a complaint and the demurrer is overruled, orderly processes require trial before appeal. By granting prohibition in this case the majority is, at least, intimating that every time a demurrer to an indictment or information be overruled, it will test such ruling on Petition for Writ of Prohibition. The case on which I place considerable reliance is that of McClendon v. Wood,1 125 Ark. 155, 188 S. W. 6. The opinion in that case recites a law of 1895 to the effect, that if the mayor of any city should knowingly and wilfully fail, refuse, or neglect to execute the laws and ordinances, then such official rvould be guilty of a misdemeanor, and upon trial and conviction in the circuit court such official would be removed from office. A proceeding was instituted against the Mayor of Hot Springs (McClendon) ; and the Judge of the Garland Circuit Court was about to try McClendon without a jury. McClendon petitioned this Court for.a Writ of Prohibition to prevent his trial by the Judge without a jury. Certainly the right of trial by jury, guaranteed by the Constitution, is equivalent to any rights that a person might have on a misdemeanor appeal filed by such person in the circuit court.
In McClendon v. Wood the Supreme Court of Arkansas said that McClendon’s remedy by appeal was adequate and that, therefore, prohibition would not lie. That case is ruling here: Duncan invested the Circuit Court of Pulaski County with jurisdiction when he appealed his misdemeanor conviction from the Municipal Court to the Circuit Court. The Pulaski Circuit Court should not be prohibited from proceeding with the trial of Duncan. If he claims that there was no offense committed, then let it be brought up 011 appeal where we will have the full record before us.
Finally, we have a Statute in Arkansas — § 11-508, Ark. Stats. — which reads as follows:
"Any person who interrupts, molests or insults by abusive words or behavior, or obstructs any officer or soldier of the National Guard while on duty, may be immediately put and kept under guard until said duty is concluded, by the officer in command. Such officer may turn him over to any peace officer of the city or place where such duty is being performed and such peace officer shall thereupon deliver such offender for examination and trial before any court having jurisdiction. Any person violating the provisions of this section shall be guilty of a misdemeanor, and, on conviction, fined in any sura not less than fifty dollars ($50.00). (Acts 1929, No: 85, § 75, . . .) ”
I think this is a salutary Statute: any civilian who resists the military will not be tried in military courts but will be returned to the civil courts for trial. Did Duncan violate this Statute by resisting the order of the officer ¶ Just because the officer was in the Army of the United States did not keep him from being an officer in the Arkansas National Guard ón duty. That is a matter of proof. Let us have the evidence brought before us in a record of his trial and then we can determine whether an offense was charged under this Statute. An Arkansas National Guard officer does not cease to be an Arkansas National Guard officer just because he is called into federal service. That is almost axiomatic in military circles.
There are many other questions argued in this case but I never reach those questions because the views herein stated convince me that Duncan’s remedy by appeal is adequate and complete. Therefore, the Writ of Prohibition should not be granted.
I am authorized to state that Mr. Justice Holt joins me in this dissent.
McClendon v. Wood has been cited many times by the Arkansas Supreme Court. In 41 A. L. R. 2d 780 there is an annotation on “Prohibition as a Remedy to Enforce the Right to Jury Trial.” It is admitted in the annotation that there are cases supporting the general proposition that prohibition is_ an appropriate remedy in such a case; but Arkansas, California, Missouri, New York, and Ohio are cited as States holding that prohibition is not an appropriate remedy; and if prohibition is not an appropriate remedy on the matter of jury trial, certainly it is not an appropriate remedy on a misdemeanor appeal from Municipal Court to Circuit Court.