Clepper v. State , 4 Tex. 121 ( 1849 )

Lipscomb, J.

This case having been submitted by the appellant when it was reached on tlie docket, and at that time there being no person authorized to represent the State, we have to dispose of it without'tlie assistance of either argument or brief on the side of the State, and consequently are not apprised of the ground on which the court below rested its decision. It is presumed, however, from tlie appellant’s brief that the court believed that the act of the Legislature giving jurisdiction to justices of tlie peace in cases of this .kind was repugnant to tlie Constitution of the State. We will proceed, then, to investigate that question.

The last paragraph of the 8th section of the hill of rights is as follows: “And no person shall he lioldeu to answer for any criminal charge but on indictment or on information, except in cases arising in the land or naval forces, -or offenses against the laws regulating the militia.” The first part of tiie 10th section of the judicial department is as follows: “The District Court shall .have original jurisdiction of all criminal cases,” &e. And tlie 17th section is as follows: “Justices of the peace shall have such civil and criminal jurisdiction as shall he provided for by law.” The 0th section of the act of the Legislature to organize Justice’s Courts and define the powers and jurisdiction of the samo is in the following words : “That any justice of the peace shall by 'warrant under his hand cause any person or persons charged oil oath, or which •may come to his knowledge by view or confession, of having been guilty of breach of tlie peace, assault and battery, assaults, riots, and all'rays, to be brought before him for trial, and if found guilty, shall proceed to collect such 'fine as may be assessed, not exceeding fifty dollars; and on payment of such flue as may be assessed, the justice receiving tlie same shall certify the fact to the next term of the District Court to be held in the comity where the offense ■was committed, which certificate shall be a bar to further prosecution for tlie ■same offense.” (Acts First Legislature, p. 300.)

There is nothing in tlie jurisdiction here given to a justice of the peace, nor in tlie mode in which it is to be, exercised, believed to be repugnant to the Sth section of tlie bill of rights. The terms used therein, of “indictment or information,” were not intended to he synonymous or convertible words. A distinct meaning was attached to each, and an offender could be tried either by indictment or on information. If by the former, it must neces-sarily require that the indictment should be fotuicf by a grand jury; if by the latter, the grand jury would have nothing' to do with it. And as it was thought by many that a grand jury formed a useless if not an objectionabie appendages to a criminal court, the section was so framed that it would be left to legislative wisdom to determine in what cases it"could be dispensed with, or to abolish the institution entirely. The word information implies no particular form; it requires nothing more than that the accused shall be informed •therein of the nature of the offense of which he-'is-.'eharged, and put on his trial; and this requisition is fully answered by the warrant on which he is •brought before the justice for trial.

Nor is there any repugnancy perceived in the lOtli and 17th sections of the •judicial department. The 10th section says that tlnfDistrict Court shall have -original jurisdiction in criminal cases, not exclusive, original jurisdiction. The T7ih section says that justices of the peace shall have such civil and criminal jurisdiction as shall be provided for by law.. It'ojxLypnts it in the power of •the Legisla! uro to give a concurrent jurisdiction to a "justice of the peace. The concurrent, jurisdiction is no anomaly in jurisprudence; it is often presented both in civil anil criminal cases, and is believed to prevail to some extent in most of the States; nor can any embarrassment result from there being two concurrent jurisdictions, as it would be settled by a well-known rule of law that in such cases the jurisdiction that was first called into exercise would have, the right to go on to judgment. But if our system stood alone in this respect, and it was not known before to the'jurispWidenee of any country that there should he two tribunals of concurrent jurisdiction, who can doubt the power of the convention to call such concurrent jurisdiction into existence? That it was intended by the framers of the Constitqtion that justices should have and exercise this jurisdiction cannot be doubted. We find it again referred to in the 19th section of the. judicial department, and provision is made: “In all easeswhe.ro justices of the peace or other judicial officers of inferior tribunals shall have jurisdiction iivthe trial- of causes where, the pen-ally of tlie violation of a law is line or imprisonment, (except in cases of contempt,) the accused shall have the right of trial by jury.” If there was any seeming repúgnanos'in the Constituí ion,-it would be our duty so to construe it as to reconcile, if possible, and give effect to each clause; but in the case before us no such difficulty is presented. It ,was the object of its framers that the District Court should be released by tire Justices’ Court from the trouble of trying many of those petty offenses tliatbut too^often take up the time of the District Court to the exclusion of much morelmporlant matter, and that intention is sufficiently made manifest in the several provisions on this subject.

We. believe the act of the Legislature is free from any constitutional objection, aud that the. plea of a former convict.ion.was.well pleaded, and interposed a bar to the second count in the indictment.

On the oilier ground it is believed to be a rule in civil eases that where the defendant pleads a bad plea, and it is so judged to-be bad on demurrer, he is allowed to plead over. We see no reason-whythe same rule shall not be extended to a defendant in an indictment.

The judgment is reversed, and the prosecution is ordered to be dismissed, as the plea of a former conviction was pleaded with a.profert of the certificate of the justice who first tried the offense as required bylaw.

Ordered accordingly.

Wheeler, J.

At the period of the adoption of the Constitution of this Slate the common law of England, in respect to crimes and criminal proceedings, was the law of the land, except so far as it may have been changed by statute. (Const. Rep., art. 4, sec. 13.) .By-that-law au in formation had a meaning’ as certain and definite as an indictment. The former differs from the latter principle in this: that an indictment is an accusation found by the oat.li of twelve men ; whereas an information is only the allegation of the officer who exhibits it. (2 Tom. L. D.) “There can be no doubt (says BJack-stone) but that this inode Of prosecution by information or suggestion filed on record by the king’s attorney general or by his coroner or master of the crown office in the Court of King’s Bench is as ancient as the common law itself.” (4 Bl. Com., 309.) I do not entertain a doubt that when the convention employed the word “ information ” as descriptive of a mode of insl Uniting a criminal prosecution, they employed it in the sense in which it was known and used in the then existing- law. And I apprehend they no more thought of conferring upon the Legislature the power to change its signification or use than that of an indictment. Nor do I suppose that the idea of dispensing wii.li the institution of a grand jury ever entered into the conception of the'eonvention any more than that of the trial hy jury, which they clothed with the solemn guaranties of the paramount law. They contemplated, 1 think, no such innovation upon the body of the common law then in force. Nor do I suppose it was the purpose of the Legislature to make, such an innovation.

Yet I am not prepared to say that it was not within the power of the Legislature to invest justices of the peace with the jurisdiction conferred hy the statute under which the justice acted in this case. And I would -not declare ,the law unconstitutional unless in my opinion it was clearly so. I do not, however, consider the question so entirely free from difficulty. But as it is now decided, I do not propose to enter upon its discussion.