State v. White

The opinion of the court was delivered by

Scott, J.

— The defendant was arrested upon a charge of assault and battery, and brought before one Gr. M. Welty, a justice of the peace of Stevens county. Upon an application for a change of venue, the cause was transferred to one I. 1. Hughes, a justice of the peace for the same county, before whom a trial was had, and defendant was found guilty, and fined one dollar and costs of suit. The defendant removed said cause, by writ of certiorari, to the superior court of said county, and a judgment was there rendered'reversing the judgment of the justice of the peace aforesaid, and ordering “that the defendant be released from the penalty thereof.” From this judgment of the superior court the state has appealed.

The defendant urges that no appeal could be taken by the state, for the reason that it does not come within any of the provisions of the statute (Laws 1893, p. 120, § 1, subd. 7) authorizing an appeal by the state in criminal actions; and on the further ground that the defendant has been acquitted on a trial upon the merits, and that a reversal of the judgment of the superior court would be putting him twice in jeopardy.

We do not think the judgment rendered in the superior court can be considered as an acquittal of the defendant upon the merits, within the meaning of the section aforesaid; nor would a reversal thereof have the effect of putting the defendant twice in jeopardy. Such an appeal does not involve a re-trial of the original issue.

It is contended by the state that certiorari will not lie to remove a criminal action from a justice of the peace to a superior court, but we are of the opinion that this objection is not well taken. The statute in question, § 1621, Code Proc., giving a remedy by certiorari, does not attempt or purport to limit the proceedings to civil actions, nor is there any apparent reason or ground why the same should be so limited.

It is further contended by the state that if the writ would lie there was no error in the proceedings before the justices of the peace aforesaid sufficient to warrant a reversal of the judgment in the superior court. To determine this it will be necessary to examine the points which were raised by the defendant in the superior court in the certiorari proceeding. It is contended by the defendant that these proceedings were erroneous upon several grounds, one of which is that he was refused a copy of the complaint upon which he was tried. It appears that when defendant was first brought before Justice Welty he demanded a copy of the complaint, but that the same was refused, and that upon the trial before Justice Hughes, after a jury had been impaneled, he again demanded a copy of the complaint, whereupon the justice handed him the original complaint, with the remark that he could make a copy if he chose to. No objection was made to this by the defendant, and as far as the record shows, he acquiesced therein. He contends, however, that under § 22, art. 1 of the constitution he would be entitled to a copy, and to have the same prepared for him by the court, or under its direction.

There is no act of the legislature requiring justices to furnish a copy. The only legislative provision is with reference to the furnishing of a copy by clerks of the superior courts, and that provides a copy shall be furnished the defendant, or that he shall be given an opportunity to make one. Sec. 1223, Code Proc. The legislature has thus deemed an opportunity to take a copy a sufficient compliance with this constitutional provision, and there is no substantial reason for holding that it is not. The constitution does not in terms require the court to make the copy, or cause one to be made, and delivered to the defendant, but says substantially that the defendant shall have a right to a copy. No point is made in respondent’s brief over the fact that he was refused a copy of the complaint by Justice Welty.

It is further contended that the judgment of the justice of the peace is void, on the ground that it was not signed, and that the transcript does not show when such alleged judgment was entered. A transcript of the justice’s docket, showing the proceedings had in the cause, appears in the record. It shows that the verdict was rendered March 30, 1893, and that a judgment was rendered thereon for the amount thereof on the same day, and it shows that the cause was then adjourned at the request of the defendant to March 31st, and again at his request until April 3d, at which time he served the writ of certiorari. These proceedings were entered by the justice in his docket consecutively under the title of the cause, as is the custom in courts of justices of the peace, and at the conclusion thereof he signed the docket, and this is all that is required.

It appears that the costs were taxed by the justice of the peace under the provisions of §2086 of the 1881 Code, which had been repealed by the act of March 9th (Laws 1893, p. 113), and which reduced the costs in such cases very materially. We do not think the record discloses any material error aside from this in the proceedings in the justice’s court. Consequently the judgment rendered by the superior court is reversed, and the cause remanded, with instructions to set aside its judgment of reversal, and to affirm the judgment rendered in the justice’s court, with the exception that the costs shall be re-taxed by the superior court under the law aforesaid in force at the time of the trial, and that the costs of this appeal be included in such judgment, and judgment rendered for the whole thereof. It is further. considered that the judgment so rendered be enforced in the superior court, if not paid or stayed by the defendant, by a levy upon his property, or by proceeding upon the bond filed by him in removing said cause by the certiorari proceeding aforesaid, or by again apprehending the defendant, and enforcing the same by imprisonment, as provided by law.

Hoyt, J., concurs.

Anders, J., concurs in the result.