Ex parte Smith , 79 Miss. 373 ( 1901 )

Terral, J.,

delivered the opinion of the court.

Bud Smith, for the commission of an aggravated assault and battery, was, by a justice of the peace of Washington county, bound over to the circuit court in the sum of $500, and, failing to give said bond, he was given into the custody of the sheriff of said county. Pie brings this suit of habeas corpus, and asks that his case be remanded to the justice of the peace for trial, and, if that prayer be not granted, that his bail bond be reduced.

The perfect propriety of the action of the justice of the peace will be best shown by a relation of the facts. Bud Smith was prosecuted before Justice of the .Peace Basket upon an affidavit charging that Smith, in said county, on the twenty-first day of September, 1901, “did commit an assault and battery on one Richard Slayton, by beating him with his fist and kicking him in the stomach, thereby causing the death of said Slayton, against the peace and dignity of the State of Mississippi. ’ ’ The evidence showed that Smith claimed that Slayton owed him a dime, which Slayton agreed to pay, and went to get the money. He did not return immediately, but fell into a conversation with Sanders, where Smith, going in search of him, found' him, and, going up behind him, without saying a word, struck him with his fist on the back of the head, turned him around, fought him some fifteen or twenty minutes, when he hunched him in the stomach with his knee, and of the injuries Slayton soon died.

We know of no law that would authorize a chancellor or circuit judge, by writ of habeas corpus or other process, to compel a justice of the peace, who had bound over to the circuit court a person for, even, a simple misdemeanor, to take jurisdiction anew and make a final trial of the case. If the justice of the peace, for any cause, should decline to try a person duly charged before him with a misdemeanor, but, instead, should bind him for his appearance to the circuit court, it would be a matter for which complaint by habeas corpus may not be made. In the serious matter here presented to Justice Basket, which, under a proper indictment therefor, would subject Smith to the charge of murder, and to a trial for such crime, it was but common prudence, on his part, to bind the offender to the circuit court, where the charge can be settled under the advice of learned counsel. The offense of assault and battery may be punished with a fine of $500 and six months’ imprisonment in jail, and, if Smith be guilty of assault and battery only, the bond required is not excessive.

Affirmed.