Henry v. State

Whitfield,. C.

The charge given for the state is as follows: “The court instructs the jury for the state that, where an affidavit of the commission of any crime of which he has jurisdiction is lodged with a justice of the peace, the law requires that such justice shall issue a warrant for arrest of such offender, returnable forthwith or on a day certain, to be named, and shall issue subpoenas for witnesses, and shall try and dispose of the case according to law. And if the jury believe from the evidence beyond all reasonable doubt that the justice of the peace did not issue subpoenas for witnesses, but permitted a plea of guilty to- be entered before this was done, then the judgment of the court was void and of no effect.”

This charge is palpably and fatally erroneous. So far as the affidavit was concerned, it was at most defective, was easily amendable, and hence the plea of former jeopardy was available, and on this record should have been sustained. See Ex parte Grubbs, 79 Miss. 358, 30 South. 708; 12 Cyc. 76, par. 1.

Per Curiam.

The above is adopted as the-opinion of the court, and for the reasons set out therein the judgment is reversed, and the prisoner discharged.

Reversed.