Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-02-04
LEGAL.
Decisions of the Supreme Court of
Tennessee, at Nashville. December
Term, 1857.

Decisions of the Supreme Court Oi
Tennessee, at Nashville. December
Term, 1857.
Reported for the Union and Dispatch, by S. j
Henderson. Attorney at Law.
A Justice of the Peace has no power to deter
mine whether the party charged with felony
is guilty of a less offense than the one with
which he is charged in the warrant That
power rests with the jury trying the cause"
In such cases the plea of former conviction
by Justice Of the Peace is not bar to the
prosecution"
PM. Hodges Us. the State
At the September term, 1886, Of the Circuit
Court of Montgomery county, an indictment
was found against the plaintiff in error for an
assault with intent to murder in the first degree.
To this prosecution he pleaded as to the felony
" not guilty" and in bar of a conviction for an
before a Justice Of the Peace under the
Code, section 1894, issue was taken upon
the first plea, and replication, filed to
the second. IN WHICH zen + was aEehrrepa that tne
in fraud Of law, upon which issue was also made,
and the cause submitted to a jury.
The jury under thesinstructions of the court,
found the plaintiff in error not guilty of felony,
but guilty of an assault and battery. Motions
for a new trial and in arrest of Judgment were
made and overruled by the court, and judgment
pronounced Tie IIOIU WHICH
there Is an appeal TO this court
It is insisted under the Code, section 5223, that
the plea OF former conviction IS bar to this pro-
5ecutiOn.
The section referred to provides that "any per-
son indicted for an assault with intent to KILL or
commit any other4elony, may be found guilty of
an assault, or an assault and battery, as the case
may be-" The section Immediately preceding
the one quoted, provides before an indictm ent
consisting of different degrees, the JurV may find
the defendant not guilty of the degree charged
in the indietment, and guilty of any degree in
offense. and the defendant may also be found
guilty of any offense, the commission of which
is necessarily included in that with which he is
charged, whether 1t be felony or a misde-
meanor."
It is well settled that to constitute plea Of
dHfsr Joss e0Rvfct an available defense in bar of
another prosecution, the former conviction must
have been lawful. IL the tribunal had no COM
petent jurisdiction. or the proceedings were IL
legal. or the indictment invalid, the conviction
will be treated as a nullity. The State Us. Spen-
Ger. 10 Hum, 432
Testing the sufieiency of the plea in question
in the light of the sections of the Code above re-
ferred TO by this rule, il is very clear that it
cannot avail the plaintiff in error as a bar to
this prosecution. He stands charged on ah in
dictment for felony, and the plain language Of
the statute providing for the trial of small Of
fenses before Justice of the Peace is that ANY
person brought before q Justice of the Peace for
a misdenle0Ror. may plead guilty, whereupOn
the Justice should hear the evidence and fine
tue Dueiuef 10 Tue agkIhNAllOB VI The
Oifense. not less than two dollars and not more
than fifty dollars. togetherWith all costs" Sec
tiOn 1894.
The jurisdiction of a Justice of the Peace in
such cases is limited to misdemeanors. and does
not extend to Offenses of the grade of felony.
In such case he has no power to determine
whether the party charged with felony is
guilty of less offense than the one with which
he is charged in the warrant, although the less
Otiense may necessarily be included in the one
with which he is charged. That power by the
language of the statute, section 5222, rests with
the jury trying.the cause. and cannot beeXercised
by the Justice; he has no jurisdiction over felO-
nies, except upon preliminary examination,
TO discharge the accused or to bind him over to
the Circuit or Criminal Court in fact. in mis-
demeanors meriting a fine of over fifty dollars
"or imprisonment and fine of any amount. or i'm
prisonment alone. or if the offense is punishable
expressly by both fine and imprisonment. the
Justice has no jurisdiction to take the defend
ants submission and render final judgment,
and should he do so it will be treated as nulii-
ty. and will form no bar in the Circuit or Crimi
nal Court, to the prosecution for the same Of
fense" Code 500l. Also State bs. Spencer 10.
Hum. 43l.
The Legislature has wisely limited the juris-
diction of Justices of the Peace in criminal
cases to misdemeanors not shown by the proof
to be of an aggravated character; and if we
were to extend their jurisdiction by construc-
ton beyond the plain intention of the Legisla-
ture, We would certainly expose 10 many abuses
to which it is not now liable. and render the
punishment of crime altogether uncertain and
Intellectual.
The plea af the former conviction in this case
should have been demurred 20; but under the
instructions of the court, which were certainly
proper. the Jury were directed 10 disregard it,
and the verdict was found on the issue of not
guilty, and we see no reason to disturb il.
Affirm the judgment.