Brown v. State , 149 Miss. 219 ( 1928 )

^* Corpus Juris-Cyc. References: Criminal Law, 16CJ, p. 571, n. 93; 17CJ, p. 60, n. 61; Judges, 33CJ, p. 1020, n. 7. The appellant, Sam Brown, was tried at the September, 1927, term of the circuit court of Perry county, on a charge of having liquor in his possession. He was convicted and sentenced to pay a fine of two hundred dollars and to serve thirty days in jail.

In the circuit court, for the first time, the appellant filed a plea to the jurisdiction of the justice court, alleging, under the decision of the case of Ed Tumey v. State of Ohio,273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 50 A.L.R. 1243, in which a justice of the peace was held disqualified because of his interest in such case, that the defendant was denied due process of law. Plea to the jurisdiction was overruled, and the cause proceeded to trial.

The sheriff was called as a witness, but his testimony was objected to as being unauthorized and inadmissible because of the evidence having been procured without a search warrant in violation of section 23 of the Constitution. The court, upon objection being made, heard the evidence bearing on the matter as to the sufficiency of the probable cause, and admitted it. It appears from the evidence that the sheriff received information that Sam Brown, the appellant, had whisky in his car and would be traveling over a settlement road on the evening in question. Thereupon the sheriff, accompanied by two of his deputies, went to this road and waited for the appellant to come along. In due time, the appellant came along and was ordered by the officers to stop, but, instead of stopping, he stepped on the gas and made his escape, one of the deputies firing a shot or two as he passed by; whereupon the defendant threw a bottle of whisky out of his car, which struck the ground beside one of the deputies who recovered it and found it to be intoxicating liquor. Later on the appellant was arrested, but without a warrant, and, when questioned as to why he did not stop when ordered to, stated that "he saw Mr. Dennis (one of the deputies) standing there, and, as he had this liquor, thought he had better make away with it."

The appellant did not testify either on the hearing of the objection to the evidence or on the trial on its merits.

As to the plea to the jurisdiction, the case is controlled byBryant v. State, 112 So. 675, in which this court held that, if no objection was made to the justice trying the case, the party, by implication, consented to be tried by such officer, and consequently was not denied due process of law, as, under section 165 of the Constitution, a party may waive a disqualification of a judge and proceed to trial before him; and, if he so proceeds without objection, such procedure constitutes a waiver.

In reference to the testimony of the sheriff, the court proceeded in accordance with the announcement made in Moore v.State, 138 Miss. 116, 103 So. 483; McNutt v. State,143 Miss. 347, 108 So. 721. We think the confession testified to was shown to be free and voluntary, and not objectionable. It follows that the judgment of the court below will be affirmed.

Affirmed.