State ex rel. Shelton v. Judge of the Seventh Judicial District , 16 La. Ann. 159 ( 1861 )

Merrick, C. J.

The relators, it appears from the petition and answer, were arrested and brought before Wm. B. Gayle, Esq., Justice of the Peace for the parish of East Feliciana, on an affidavit charging them with assaulting the prosecuting witness, with a dangerous weapon with intent to murder.

When the relators were brought before the magistrate they waived an examination and tendered their bonds for their appearance before the District Court. Their bonds were accepted, and they were discharged from custody.

Subsequently, the magistrate summoned the witnesses, and notified the accused to attend at his office, in order that the examination of the witnesses might he reduced to writing. The relators attended before the magistrate with counsel, and objected to go into an examination of the witnesses, on the ground that the magistrate had no further jurisdiction over them.

The magistrate being of the same opinion, hound the witnesses over to appear before the District Court, and refused to examine them.

Thereupon the prosecuting witness applied to the District Court for a mandamus to compel the magistrate to cause the relators to come before him and examine the witnesses, in order to perpetuate their testimony. After a hearing upon the application, the District Judge made the following decree, viz : “ This case being taken up after regular assignment, and the law and the evidence being in favor of relator, it is therefore decreed, that the rule be madG absolute ; that a mandamus issue peremptorily, commanding W. B. Gayle, Justice of the Peace, to proceed and examine the parties accused in the case of the State v. John Shelton, James P. Shelton and James Mansker; that he cause said accused parties and the witnesses in said prosecution to appear before Mm on a day to be fixed by said W. B. Gayle, Justice of the Peace ; that he examine the witnesses on the part of the State, and the defendant, on oath ; that he reduce said depositions to writing, and that he return said depositions with his proees verbal to the 7th District Court for said parish, as the law directs ; the defendant to pay costs.

Prom this decree the relators, as well as the magistrate, applied for an appeal, which was refused them.

The present is an application for a rule against the District Judge, to show cause why a mandamus should not issue to compel him to grant the appeal.

The District Judge has accepted service and filed an answer in this court, and consents that if the same be insufficient, the mandamus issue at once.

He contends that his decision was right, and that the order of the court cannot work any injury to the parties.

The question before us is simply this, does an appeal lie from the order of the Judge ?

The offence charged against the relators appears to be one punishable by imprisonment at hard labor. Phillip’s Dig. p, 136, sec 9.

The Constitution gives this court appellate jurisdiction of questions of law, whenever the offence charged is punishable with imprisonment at hard labor. Const., Art. 62.

A question of law was then raised in the District Court in a case over which this court has appellate jurisdiction, and the question of law cannot be revised by this court in any other manner than by a direct appeal from the decision on this collateral matter affecting the rights of the accused, for the decision on this branch of the case is final.

Whether the District Judge was right or-wrong in his conclusions in his judgment can be fully determined on appeal.

If he was wrong in ordering the Justice of the Peace, who had decided the case on his own convictions of the law; to bring” the parties accused before him a second time and compel them by arrest or otherwise to submit to an examination which they had lawfully declined, then his decision might work' an irreparable injury by extorting from the parties statements and admissions prejudicial to their rights.

It therefore appears to us that the parties, under the Constitution, have a right to appeal. See White v. Cazenave, 14 A. 57.

The mandamus must issue.