Bryant v. State , 146 Miss. 533 ( 1927 )

^* Corpus Juris-Cyc References: Judges, 33CJ, p. 991, n. 57; p. 992, n. 58; p. 1006, n. 85; p. 1014, n. 45; p. 1019, n. 91, 94; p. 1020, n. 7; Justices of the Peace, 35CJ, p. 542, n. 48; p. 543, n. 65; p. 547, n. 15, 19, 23. Appellant was charged by affidavit before a justice of the peace of Madison county, with the crime of violating the game laws, in that he hunted and killed squirrels in Madison county during the closed season for hunting and killing of such game. He was tried and convicted before the justice of the peace, and sentenced to pay a fine of ten dollars and costs of the prosecution, which included fees of the justice of the peace. From that judgment, he appealed to the circuit court of Madison county, where there was a trial de novo.

In the circuit court, appellant interposed a plea in abatement to the affidavit charging the crime. In short, the plea in abatement set out that, by the trial before the justice of the peace, appellant was denied due process of law, in violation of both the federal and state Constitutions, because the justice of the peace was interested in the outcome of the prosecution, in that his compensation for his services as such justice of the peace, in that class of cases, depended on conviction. The district attorney demurred to the plea in abatement on the ground of insufficiency in law, which demurrer was by the court sustained, and thereupon a trial was had on the affidavit charging the offense, the plea of not guilty by appellant, and evidence, resulting in a verdict of guilty and judgment of the court thereon sentencing appellant to pay a fine of ten dollars and costs of court. From that judgment, appellant prosecutes an appeal to this court.

The purpose of this appeal is to have this court pass on the constitutionality of the laws of this state by which the compensation of justices of the peace, in prosecutions of misdemeanors before them, is made dependent on conviction. Appellant's position is that such laws bring about the result of making justices of the peace interested financially in the outcome of prosecutions for misdemeanors before them; that, therefore, they are disqualified in such cases; and that persons tried and convicted therein come under the principles of the recent case decided by the supreme court of the United States ofTumey v. State of Ohio, 47 S. Ct. 437, 71 L. Ed. 544. Under the record in the case at bar, however, that question cannot be decided, because it does not arise.

Section 171 of our Constitution, among other things, provides for the selection of a competent number of justices of the peace for each county in the state, and prescribes their civil and criminal jurisdiction, and provides further:

"And no justice of the peace shall preside at the trial of any cause where he may be interested, or the parties or either of them shall be connected with him by affinity or consanguinity,except by consent of the justice of the peace and of theparties." (Italics ours.)

Section 165 of our Constitution, among other things, provides that no judge of any court shall preside on the trial of any cause where the parties, or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in same, except by consent of the judge and the parties. Our court has construed those provisions of the Constitution in several cases, holding that the disqualification of a justice of the peace or judge could be waived, either expressly or by failure of the complaining party, in due time to object to such disqualification. The objection must be made before the trial, or, if made thereafter, before the judge or the justice of the peace has lost control of the judgment, and a failure to make such objection within that time is tantamount to a waiver of the disqualification of the judge or justice of the peace. Nimocks v. McGehee, 97 Miss. 321, 52 So. 626; Y. M.V.R.R. Co. v.Kirk, 102 Miss. 41, 58 So. 710, 834, 42 L.R.A. (N.S.) 1172, Ann. Cas. 1914C, 968; Shireman v. Wildberger, 125 Miss. 499, 87 So. 657; Dixon v. Rowland, 143 Miss. 270, 108 So. 807.

The plea in abatement fails to set out that appellant objected to the case being tried before the justice of the peace, either before the trial or at any time before the justice of the peace lost control of the judgment. Doubtless, if such objection had been made, it would have been set out in the plea in abatement. Under the decisions of this court, appellant is in the attitude of having consented (as he had the right to do, under section 171 of our Constitution) to the trial of the charge against him before the justice of the peace who tried him, notwithstanding the alleged disqualification of the justice of the peace.

Affirmed.