ARK.] SIMPSON AND ELLIOTT V. STATE. 623 SIMPSON AND ELLIOTT V. STATE. .• Crim. 3990.• Opinion delivered February 15, 1937. • I. CRIMINAL LAW.—In a prosecution • for unlawful detainer insti tuted in the court of a justice of the peace, tl .;e defendants were not entitled to discharge because it was made to appear they were not guilty of the offense charged, where it appeared that ,they were guilty of taking possession of real estate without authority from the owner or his agent. (C. & M.'s Dig., §§ 4836, 4837, 2931 and 2932.) 2. CRIMINAL LAW—APPEAL.—Where, in a prosecution in justice of the peace court, the justice found appellant guilty of an offense and Unposed- a fine, this became the offense with which appellant was charged on hi's appeal to the circuit court, and it was unimportant to inquire whether there had been irregularities in the proceedings, because the trial in the circuit court was de novo. - 3. CRIMINAL LAW—JURISDICTION OF OFFENSE.—In a Drosecution for taking possession of : real- estate without authority from•the owner or his'agent; the title thereto is not involved where it has been determined by proceedings in chancery and circuit courts and in the federal court in which defendant was a party and. the justice of the peace find circuit court on appeal had jurisdiction of the' offense. Appeal from Mississippi Circuit 'Court, Osceola Dis2 trict ; Neil Killough, Judge; affirmed . • C. T. Carpenter, for appellants.. . Jack Holt, Attorney. General,. and John. P. Streepey, Assistant; for appellee. -• • • • SMITH, J. W. P. Hale, a justice of the pence • in Mississippi county, entered Upon his docket the cases-of 8tate of Arkansas v. Bud Simpson and Henry Elliott; in which he made the notation that the dePuty . proseeuting attorney had filed With'him an affidavit charging them with the offense of forcible entry, and the justice -issued
624 SIMPSON AND ELLIOTT V. STATE: [193 warrants of arrest both for Simpson and Elliott charging each of them with . that-offense. The deputy prosecuting attorney did not make an AffidaVit, .but he . did .direct the issuance of the warrants charging both Simpson and El-liott with having committed forcible entry. The parties appeared pursuant to the warrants for trial before the justice, whereupon it was announced by the deputy prosecuting attorney representink the state that he would not prosecute for violation of §.48.37, Crawford & Moses' Digest, which defines A forcible entry, but would prosecute for a Violation of § : 4836, Crawford & Moses' Digest, which makes unlawful thetaking possession of,real estate without authority, from the owner of the property, or bis agent. - No continuance -was asked on that account, and the trial in the justice court terminated in the. imposition of a fine of $10 against . each defendant, from . which judgMent an appeal was prosecuted to the circuit court. When the cases were . called for trial in the circuit court a motion was wade to dismiss the prosecution upon the ground that it had been commenced without an affidaVit or information filed, and upon the further 'ground that the defendants . had been_ acciiSed upon 6ne charge and convicted upon a different charge. The defendants- were not entitled to their discharge by the justice of the -peace because it was made-to appear that they were not guilty of the offense charged where it also appeared . that they were guilty . of Another offense. Section 2031, Crawford & .Moses: Digest,' requires a justice to discharge an accused when, in the opinion of the justice, there is not sufficient cause for believing that : the defendant has ComMitted a public offense. But by § 2933' it is 'provided that if it be made to appear, upon the trial,' that the defendantis guilty 'of a public Offense other than' that charged in the warrant, the defendant shall be held in the custody of the •officer and tried for such offense, a reasonable opportunity hav-ing- been given defendant to obtain .his witnesSes -• and prepare his . defense. • ." The justice had the same • jurisdiction to try •an 'accused person for a vi6lation of § 4836; CraWford &Moses' Digest, as: he did to try him for...violating § 4837, .and
ARK.] SIMPSON AND ELEIOTT V; STATE. 625 when it appeared that-the •accused had . 'not tviOlated one section,, but had violated . -the.sother;:it was. the 'duty .of the justice to:try the acctised.'fof•the offense Which had apparently . been coramitted,. after giving the .accused an opportunity to ; obtain:his . witnesses and prepare his . defense, as § ;2933, CraWford;& Afoses? Digest,-.provides. These questions' are all disposed Of by the opinion in:the case of Mayfield V. State, 160 Ark. 474, 254 S. -W.. 841, ; where it was 'said: . not-Stop to.linqUire whether there was any- error in the procedure . b'efore the justice. or not; aS the canse was -appealed to* the circuit court, where there was a trial de nova. .T116 original affig davit and warrant.had brought appellant •into Court, and the justice, 'sitting as an examining court, found , appellant was guilty'of an Offense. and.imposed a fine for its. commission. ; This. became the: offense with the Commission of which appellant was.. charged ; Upon. his apPeal to the circuit court, and it. was. unimportant .to iriquite whether there had' been . irregularities . .leading.. to , this :situation; because the . .trial :in the, ;circuit c . o urt . , . was. fie no . vo." (Citing cases.) . ,; , . • . A motion praying the Circuit court to .. dismiss . the prosecution was, made,.. and is renewed here,. upon the ground that-. the prosecution,involved questions relaiing to the title and,..the right . to the, possession of. the land, of neither of which questions, the justice-had jurisdiction and the circuit c ' ourt, therefore; acquired no jurisdiction. upon the appeal,. • , „ It appear s ' that certain land . t of which . the land here involved was. a . part had. ,been, partitioned. in . kind by a decree of,:the Chancery . court,, tinder which decree 21.,1 acres , were . assigned :to, lqrs. „Doris Harrison Burkett. The defendant Simpson ,was a party to . that proceeding. The husband of Mrs. Burkett was :called as a witness at , the trial from which . this appeal comes to prove that defendantS lad taken 'riosSessiOn. Ot a , portion of the tiact ofland assigned . ti:i Mr. t Buikett. ObjectiOn was made by'connsel for'defendanfs'that thorecord -itself. was the best evidenee, whiCh ObjeCtion Was met hy' introduction 'of the tecord:' , i0ther testimony was offered to the effect that. defendants .had entered npon-and . had
626 SIMPSON AND ELLIOTT V. STATE. [193 taken and were holding- possession of a portion of MTS. Burkett's land without 'authority so to do. In this . deCree provision was made for the payinent of a fee to -an attorney who had represented the heirs wh6se estate was being partitioned in recovering that portion of the land from the possession of appellant Simpson. Another decree was offered in evidence in a suit brought by certain of the heirs whose estate had been partitioned against L. R • (Bud) Simpson, in which the court found and decreed "that the defendant (Simpson) has no title, interest or right in and to said lands: That his interest was settled by judgment of the circuit court of the Osceola district of Mississippi county, Arkansas,. on the 5th day of January, -1916, and by a corredtion of said judgment on the 31st day of March, 1916, 'and that the question of his righth was fUrther settled by •A judgment in the United States district• court in favor: of . the plaintiffs." -The defendant Simpson was therein-enjoined from committing any trespass Upon the- land. It appears that deSpite these adjudication 's the defendant Simpson holds possession of a porfion of the land, and attemptg to defend that action upon the ground that the portion of the land which . he is charged with unlawfully holding was awarded him by the verdict of the jury, but that the judgment did not conform to the verdict. The question Of title must be treated as conclUded by these decrees and judgment. There was no attempt to retry the question of title and right to possession, as those questions had already been adjudicated. These decrees and judgment, in Conjimction with the parol testimony as to entry 'upon' the lands there deScribed, tify the lands as. belongink to persOns other than appellants, and did not constitute a Arial of the title or right of possession. Now, defendant, Simpson, might be guilty while his codefendant Elliott was mot. But the court charged the jury that "In regard to the case of the State v. Elliott, if you find from the testimony that the defendant Elliott, in good faith, wa.s of the opinion that Bud Simpson was the owner of the land in controversy, and with that opin-
ARK.] 627' fOrmed in good faith, went into the possession of the land, in that event he would not be guilty:" Some kind of relation of landlord and tenant existed 'between Simp-son and. Elliott, the exact nature . of which is not clear. But ' the instruction quoted from submits Elliott's good faith, and did not require him to- know or to inquire what right of possession his landlord had, but he could not excuse his holding of the land if he was not acting in. good faith, based upon the opinion or assumption that Simpson was also acting in good faith, and had the . right to put him -(Elliott) in possession. There was a_separate verdict against each defendant. Upon the trial in the circnit court the fine Was increased to $75, which is still less than the maximum punishment Provided for the violation of § 4836, Crawford k Moses' •igest. This may be eXplained by saying that the defendants' attitude manifests a contempt for and a-defiance of the judgment and decrees herein referred to, which records cannot be questioned in this Collateral proceeding. The state did not attempt to . try the title to the land or the right of possession thereof, and the - justice court Originally and the circuit court on the appeal had jurisdiction of the offense for which appellantS have been convicted, • • • - As no error appears . , the judgment is •affirmed,
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.