Smith v. State , 67 Miss. 116 ( 1889 )

Cooper, J.,

delivered the opinion of the court.

The demurrer to the plea of former acquittal was properly sustained. The charge against appellant before the justice of the peace was for an assault and battery, and of that he was acquitted. The indictment against him is for disturbing religious worship by the assault and battery and by profane swearing. Upon this charge he might properly be convicted by evidence of the swearing only. It was not necessary that any evidence should be given of the assault and battery, for it may be that appellant so gently contended with his adversary, that, but for the boisterous use of the language used, the congregation would not have been disturbed.

But the proceedings before the justice did not operate to protect the defendant, for the further reason that it does not appear by the plea that the act with which he was charged before such justice was committed within the territorial jurisdiction of the justice before wbom the trial was had. Justices of the peace have jurisdiction to try offenses only when committed “in their several districts,” unless there be no justice in the district in which the offense is committed, in which case the trial may be had in an adjoining district. Code 1880, § 2216; Acts 1888, p. 88.

Since it does not appear from the plea that the defendant was tried before a justice having jurisdiction of the offense charged, the state was not precluded, if it had elected to do so, from prosecuting an indictment against him for the “assault and battery with brass knucks upon Jennings.”

If gentlemen will fight and swear in church, they should see to it that the verdicts of acquittal secured before the justices of the peace are before those having jurisdiction; otherwise they may be subjected to further annoyance by indictment.

The judgment is affirmed.