People v. Putty

HOUSER, J.

This is an appeal from a judgment of conviction of defendant for the commission of the offense of illegally manufacturing intoxicating liquor. The original complaint which was filed in the justice’s court contained two counts, the first of which charged defendant with manufacturing liquor contrary to the provisions of the statute, and the second of which accused defendant with illegally having intoxicating liquor in his possession. When the matter came on for hearing before the justice of the peace attention was directed to the fact that as to the second count the justice’s court had jurisdiction to hear and determine the same, while as to the first count the only province of the court was to sit as a committing magistrate for the purpose of conducting the preliminary examination provided for by the statute. Counsel for defendant then offered a sug

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gestión that, in view of the fact that defendant had never been in trouble before and as the officers appeared “to have a case” against defendant, he be permitted to plead guilty to the second count, with the understanding that the action be dismissed as to the first count of the complaint. The prosecuting attorney declined to accede to such suggestion; whereupon the following occurred between counsel:

“Mr. Coles (Attorney representing defendant) : Very well, we are ready to proceed.

“Mr. Jamieson (Prosecuting attorney): Ton have seen the complaint?

“Mr. Coles: I have seen the complaint. I am just going to let you go ahead.

“Mr. Jamieson: Have you any objection to trying these together? If you have, we will try each one separately.

“Mr. Coles: We are here to answer to the complaint.

“Mr. Jamieson: We will present the case as we have it.”

Evidence was then introduced; the defendant was found guilty as to count two, upon which he was sentenced by the justice’s court; and as to count one he was held to answer to the superior court. After the information had been filed and the superior court had gained jurisdiction, defendant moved to set the information aside on the ground “that before the filing thereof the defendant had not been legally committed by a magistrate,” which motion was denied by the court. Prom a judgment of conviction in the superior court as to count one, defendant has appealed to this court— his contention being that the justice of the peace in conducting a trial of defendant as to count two of the complaint and at the same time holding a preliminary examination as to count one thereof was acting in excess of his jurisdiction.