Ex parte McCarthy

By the Court : It is not necessary in this case to define the terms “ capital or other infamous crime,” employed in sec. 8 of art. 1 of the Constitution of the State. (Art. 1, sec. 8.)

It may be admitted that “ exhibiting a deadly weapon in a rude, angry, and threatening manner” is not an “infamous crime,” which can be prosecuted only by presentment or indictment by a grand jury.

[413]The Constitution provides that the County Courts shall have “ such criminal jurisdiction as the Legislature may prescribe ” (art. 6, sec. 8) ; and that the Legislature shall “ fix by law the powers, duties, and responsibilities ” of Justices of the Peace— “ provided such powers shall not in any case trench upon the jurisdiction of the several Courts of Record.” (Art. 6, sec. 9.)

The statute provides: “ Every public offense must be prosecuted by indictment, except [after other enumerated exceptions] offenses tried in Justices’ and Police Courts.” (Penal Code, sec. 682.)

Neither the Constitution, (art. 1, sec. 8) nor the section of the Penal Code last cited, prohibits the prosecution by indictment of any criminal offense.

And the Code of Civil Procedure (sec. 85) declares that the jurisdiction of the County Courts shall extend “to inquire, by the intervention of a grand jury, of all public offenses committed or triable in the County, and to the trial of all indictments, except for treason, misprision of treason, murder, and manslaughter.”

Under this section of the Code of Civil Procedure, (which in no wise conflicts with any provision of the Constitution) the grand jury had power to indict the petitioner for the crime with which he was charged, although it be not an infamous crime, and the County Court had jurisdiction to try the indictment.

The question which remains is: Has sec. 85 of the Code of Civil Procedure been repealed ?

It is not claimed that the section has been expressly repealed, but that as sec. 117 of the same Code is found later in the statute than sec. 85, the former is the last expression of the legislative will, and must be held to have repealed anything in the latter which may conflict with it.

Sec. 117 gives jurisdiction to the Justices’ Courts of all misdemeanors punishable by fine not exceeding five hundred dollars, or by imprisonment not exceeding six months, or by both such fine and imprisonment. “ Exhibiting a deadly weapon,” etc., is one of those misdemeanors, and sec. 117 of the Code of Civil Procedure therefore confers the jurisdiction to try that offense upon Justices of the Peace.