Smith v. State

delivered tRe opinion of tRe court.

TRe justice of tRe peace in tRis case on November 1, 1903, bound SmitR over to appear before tRe circuit court to await tRe action of tRe grand jury on tRe cRarge of conspiracy to rob. He Rad no power to do tRis, and tRe bond is void. Code 1892, .§§ 2420, 2421, provides tRat justices of tRe peace Rave final jurisdiction of misdemeanors, and must try and dispose of tRem according to law. TRe justice of tRe peace sRould Rave tried *317Smith, and acquitted him or convicted him. The only bond he could take of Smith on this charge is the one provided for in sec. 2423, Code 1892, -which is a bond for his appearance before him, the justice of the peace; and this bond he can only return to the circuit court in case the penalty exceeds $20.0; and the only forfeiture that the circuit court could take on such a bond would be on account of defendant’s default in appearing before the justice, and not on account of his default in appearing before the circuit court to answer an indictment of the grand jury. This case is not saved by Oode 1892, §§ 1394, 1395. This is a case of absolute want of power on the justice’s part to take any such bond. See Thomm v. State, 35 Ark., 327; 5 Cyc. of Law, p. 86, and authorities there cited. The demurrer of the district attorney to the plea of the defendant to the judgment nisi for $1,000 should have been' overruled. The plea was good on that ground set up in it that “the said justice of the peace had no authority to take the bond” requiring the defendant to appear to answer an indictment by the grand jury, where the charge before him was a mere misdemeanor. The demurrer to the scire facias should have been sustained, and the demurrer of the district attorney to the plea to the judgment nisi for $1,000 should have been overruled.

Reversed, demurrer to scire facias sustained, demurrer to the flea of defendant to the judgment nisi for $1,000 overruled, and the suit dismissed.