Walker v. State , 108 Ala. 56 ( 1895 )

McCLELLAN. J.

The question in this case is not • whether Walker was under any statutory or common law obligation to appeaiffin the circuit court and answer the charge of bastardy. That question might be of moment if he had not appeared and the sureties on his bond were being proceeded against for that he failed to appear. But he did appear in that court and the issue between him and the State as to whether he was the father of the illegitimate child of Elizabeth Dix, a single woman resident of the county, was there tried and adjudged against him. And it is manifestly of no consequence whether the appearance bond was good or bad, or whether there was any appearance bond at all or not so far as the regularity and validity of the judgment is concerned.

Nor is the question here whether the proceedings before the justice of the peace were so lacking in formality and the showing of facts authorizing action on his part that perjury could not be assigned upon false swearing in the trial had before him, as in the case of Collins v. The State, 78 Ala. 433. Perjury cannot be assigned of an oath before a de facto officer though his action taken upon such oath may be perfectly valid.— Walker v. State, (Mss.). Nor yet even where the whole proceeding before the j ustice was coram non juclice and void for the absence of averment or other mode of showing some jurisdictional fact. But the question is whether the circuit court had jurisdiction of this case when that court proceeded to try it and to render the judgment now appealed from. And upon the reasoning and authority of the cases of Hanna v. State, 60 Ala. 100, and Smith v. State, 73 Ala. 11, our conclusion is that the circuit court not only had jurisdiction of the case .but committed no error in the trial of it. In the latter of these cases the affidavit was defective in that it failed to aver that the affiant was a single ■woman and a resident of the county in which the prosecution was commenced; nor did these facts otherwise appear in the papers before or which were issued by the justice; and these defects were sought to be taken advantage of by demurrer and, as here, by motion to quash, &c., in the circuit court. These were overruled, the solicitor was allowed to file an unsworn complaint in the circuit court setting up these and other statutory facts ; and upon that complaint the issue .was tried, and judgment entered against the defendant. The judgment was affirmed in this court on the ground that the regularity of the proceeding before the justice could not be attacked for the first time in the circuit court. By the light of that decision every point made in this case, except as to the bond, must be determined against the appellant. Smith v. State, 73 Ala. 11. And, as we have already seen, the bond being intended merely to secure the appearance of the defendant, and he having in fact appeared and trial of the issue between him and the State having been had, it is of no consequence whether the bond is or ever was of any efficacy or not. — Hanna v. State, 60 Ala. 100.

Affirmed.