[§ 238] (4) (4) When Transfer Takes Place, and Effect of. After an indictment has been duly transferred from one court to another, jurisdiction of the case is immediately vested in the latter, and the former loses all jurisdiction.37 A case has variously been held to be transferred duly, so as to confer jurisdiction upon another court when the papers are placed upon its files and the cause stated upon its docket;38 when the order is entered 39 or the indictment is received 40 in such court; when the order of removal is passed;11 or when the transferring court has bound the prisoner over."

[§ 239] d. Proceedings after Transfer. Where a case is transferred from one court to another, no new indictment need be found, and the state can proceed on the original paper.43 If the transcript received is incomplete, it may be returned for proper completion.44 If the indictment is imperfect, the court to which the transfer is made may have a correct indictment returned by its own grand jury,45 or may do any other thing that the court from which it came could do, incident to the trial, if the case were pending there.46 But if the indictment is good on its face it cannot be impeached.47 And if the court to which the transfer is made has jurisdiction to try the offense named, the jurisdiction of such court to try the particular cause cannot, in any way, be impeached.48

was charged with carrying a pistol, it | transmitted to a city court for trial, should have been quashed).

referred must try it, and if, on his refusal so to do, defendant is taken before another justice, the latter has no jurisdiction.57 The mere filing of an affidavit of prejudice does not, however, make it the imperative duty of the justice to transfer the case; it is for him to determine whether the facts set out in the affidavit show that a fair trial cannot be had by reason of prejudice.58 Moreover a criminal case cannot be tried partly before one magistrate and partly before another; when the trial is once commenced it must proceed to the end before the same court and jury.59 In the absence of express statutory provision, an affidavit by accused that the examining magistrate is a material witness for him does not authorize a transfer of the ease to another magistrate for examination; and if the case is so transferred by direction of the first magistrate, he does not lose, nor does the other magistrate acquire, jurisdiction.60 Where the statute provides that a justice may transfer a cause to any one of several justices, it should be transferred to the one nearest to the home of accused;1 and it seems that the determination of the justice as to who is the nearest magistrate is conclusive.62 Where there is no particular mode prescribed for the transfer of causes by justices' courts, great liberality is necessarily allowed in the matter of pleading and practice.63

formation made before the city magistrate unless an order for the transfer of the cause has been made by him.65

66

[244] 4. Transfer by Operation of Law—a. Creation of New Court or Abolition of Existing One. Where a new court is created by a statute which confers upon it exclusive jurisdiction of certain crimes and expressly transfers such crimes then pending in other courts, the jurisdiction of the existing court ceases, and the cases are transferred by operation of the statute, and no new indictment or process is necessary. And the same is true where an existing court is abolished by statute, and all cases pending therein are transferred to another court.67 But under some statutes an order of transfer is required to confer jurisdiction upon the new court." And it has been held that, while an existing court may be allowed to transfer to a newly created court any indictment charging a misdemeanor, a law which seeks to make this act on the part of the court mandatory is unconstitutional and void.69

68

[245] b. Creation of New County. Under an act creating a new county, the power to transfer from adjoining counties, pending prosecutions over which the new county acquires jurisdiction upon the completion of its organization, must be implied.70

[§ 246] J. Loss or Divestiture of Jurisdiction -1. In General. As a general rule the jurisdiction of a court depends upon the state of the facts existing at the time it is invoked, and if the jurisdiction once attaches to the person and subject matter of the litigation, the subsequent happening of events, although they are of such a character as would have prevented jurisdiction from attaching in the first instance, will not operate to oust jurisdiction already attached." Thus when a court has 59. Peo. v. McLaughlin, 57' App. | Bryant v. State, 158 Ala. 26, 48 S Div. 454, 68 NYS 246, 15 N. Y. Cr. 337; Peo. v. Norton, 76 Hun 7, 27 NYS 851; Peo. V. McPherson, 74 Hun 336, 26 NYS 236. To same effect see Re Holman, 27 Ont. L. 432, 3 OntWN 207, 23 OntWR 219, 4 Ont WN 434, 23 OntWR 428.

64

In New York City a cause commenced by information and arraignment before a city magistrate cannot be transferred for trial to a court of special sessions composed of three justices unless defendant consents; or, in default of such consent, unless the city magistrate proceeds to examine such cause as a magistrate and thereafter holds defendant for trial before such court of three justices; and the court of special sessions cannot proceed on the intheir provisions, apply to preliminary examinations well as in other State v. Evans, 88 Wis. 255, 60 NW 433; State v. Sorenson, 84 Wis. 27, 53 NW 1124: Martin v. State, 79 Wis. 165. 48 NW 119; Billings v. Noble, 75 Wis. 325, 43 NW 1131. (2) But it has been held that a statute permitting the transfer of an action or proceeding from one justice to another at any time before the trial Commenees does not apply to a preliminary examination to ascertain whether accused ought to be held or not. State v. Bergman, 37 Minn. 407, 34 NW 737; Duffies v. State, 7 Wis. 672.

cases.

as

[c] The docket entries of the justice, fixing the time and place for appearance before the justice to whom the cause was transferred, cannot be impeached by affidavit showing an oral understanding of the parties upon the question. State v. McKinley. 114 Minn. 434, 131 NW 369.

57. Connell v. Stelson, 33 Iowa

147.

58 Ex p. Wright, 119 Cal. 401, 402, 51 P 639 (where, construing Pen. Code

1431, it is said: "The refusal of the justice to change the place of trial may have been error, and if so the prisoner has an ample remedy by appeal, but the justice did not exceed his jurisdiction in proceeding with the trial after overruling the motion for a change of venue"); Lowrey v. Hogue, 85 Cal. 600, 24 P 995; Miles v. Pasadena Tp. Justice's Ct., 13 Cal. A. 454, 110 P 349.

[a] The opinion of accused, that he cannot have a fair and impartial trial, is not sufficient to procure a transfer of the case to another justice. He should state facts on which the justice hearing the case can exercise his discretion, subject to a review upon an appeal to the superior court. Lowrey v. Hogue, 85 Cal. 600, 24 P 995.

60. Peo. v. Duncan, 97 Mich. 632, 57 NW 191.

61. Albertson v. Kriechbaum, 65 Iowa 11, 21 NW 178; State v. Ivie, 118 N. C. 1227, 24 SE 539; Gill v. State, 45 Tex. Cr. 256, 76 SW 575; State V. Sorenson, 84 Wis. 27, 53 NW 1124.

62. Jackson v. State, 91 Wis. 253, 64 NW 838; State v. Evans, 88 Wis. 255, 60 NW 433; State v. Sorenson, 84 Wis. 27, 53 NW 1124; Martin v. State, 79 Wis. 165, 48 NW 119.

63. Holley v. State, 74 Miss. 878, 21 S 923 (holding that a transfer without an order therefor on the mayor's docket or an affidavit for removal will be sustained).

64. Peo. v. Franklin H. Kalbfleisch Co., 174 App. Div. 108, 160 NYS 996 [app dism 220 N. Y. 760 mem, 116 NE 1064 mem]; Peo. v. Freschi, 173 App. Div. 189, 159 NYS 23.

65. Peo. v. Franklin H. Kalbfleisch Co., 174 App. Div. 108, 160 NYS 996 [app dism 220 N. Y. 760 mem, 116 NE 1064 mem]; Peo. v. Freschi, 173 App. Div. 189, 159 NYS 23.

66. Ala.-Bryant v. State, 158 Ala. 26, 48 S 543.

35.

La.-State v. Harper, 28 La. Ann.

543 (where a warrant for the arrest of defendant had been issued, but not served, at the time of the transfer).

67.

State v. Edwards, 73 W. Va. 46, 79 SE 1005.

68. Williams v. State, 171 Ala. 56, 59, 54 S 535 (where the court said: "The statute might have provided, no doubt, that upon the return of an indictment for a misdemeanor into the circuit court the jurisdiction of the city court to try should thereupon, and without more, attach. But it did not so provide. It requires that an order for transfer be made in the circuit court, that the clerk of that court shall do certain acts in compliance with the order, and that thereupon the jurisdiction of the circuit court shall cease, and the city court be empowered to try all such causes as if the same had originated in the said city court"); Green v. State, 168 Ala. 104, 53 S 284; Mitchell v. State, 168 Ala. 102, 53 S 285. 69.

Williams v. State, 11 Ga. A. 240, 75 SE 141.

70. Lay's App., 150 Ky. 448, 150 SW 529 (holding that in view of St. §§ 1115, 1119, it was the duty of the clerk of the circuit court to comply with order transferring certain prosecutions to a newly organized county, although the order recited a bad reason for its issuance).

an

71. Harmon v. State, 8 Ala. A. 311, 62 S 438.

[a] Statute divesting jurisdiction. The Arkansas statute of 1846 transferring the jurisdiction of certain offenses from the circuit court to justices of the peace did not deprive the circuit courts of their jurisdiction over cases of which they had juris-. diction at the time of the enactment of the statute. Gooch v. State, & Ark. 448.

After

acquired jurisdiction no subsequent error or irregu-
larity will oust the jurisdiction thus acquired.72
The court may discharge a jury in a criminal cause
when they fail to agree, without loss of jurisdiction
over the cause or the person of defendant.73
the court has once acquired jurisdiction to deter-
mine the case, the party injured cannot, by after-
ward compromising, take away that jurisdiction.74
It may lose jurisdiction over the person of defend-
ant if it lets him go without day;75 but where the
indictment remains, and the prisoner is out on bail
or escapes, or is even discharged upon the order
of the court from custody or imprisonment, there is
no loss of jurisdiction upon the indictment.76 Dis-
qualifications of grand jurors do not destroy the ju-
risdiction of the court in which an indictment is
returned, if the court has jurisdiction of the cause
and of the person." 77 When a court having juris-
diction over a prisoner denies to him a constitu-
tional right of immunity, its jurisdiction ceases,
and its acts are void.78 Where a court has con-
current jurisdiction with all other courts as to
the trial of misdemeanors, no direction given in
a special law requiring that magistrates shall com-
mit solely to another court can affect its juris-
diction.79

72.

a

[§ 248] 3. Two Offenses Charged. Where an information charges defendant with the commission of two offenses, of one of which the court has jurisdiction, and defendant is convicted of that offense, the charge of the other offense, of which the court had no jurisdiction, will be treated as surplusage and will not oust the jurisdiction of the other.82

[249] 4. Application for, or Erroneous Denial of, Transfer or Change of Venue. Under some statutes the jurisdiction of a justice of the peace ceases at once on an application for a change of venue, except for the purpose of transferring the case to another justice;83 but there is also authority for the proposition that the mere application by affidavit for a change of venue does not terminate the jurisdiction, although the statute says that the justice must grant the change.84 The erroneous denial of a motion for a change of venue does not oust the jurisdiction.25

432.

Mė.-State v. Ham, 54 Me. 194.
Mass.-Com. v. Fischblatt, 4 Metc.

354.

[250] 5. Adjournment or Continuance-a. In General. Where there is no statutory regulation of adjournments or continuances in criminal proceedings, the jurisdiction of a court or a justice is not lost by an adjournment or a continuance for a rea1893 (Acts [1894-1895], pp 1221, 1222), | 434; Bailey v. Quick, 28 La. Ann. giving the city court of Talladega county jurisdiction over prosecutions for misdemeanors which may be commenced by complaint and warrant of arrest, and providing that in the trial of criminal cases on complaint or indictment, defendant shall be entitled to trial by jury, if demanded in writing, the fact that one charged with a misdemeanor on a complaint and warrant issued from such court demanded a 'jury trial in writing did not deprive the court of jurisdiction to try him on the complaint, or require indictment by the grand jury. Frost v. State, 124 Ala. 85, 27 S 251.

[247] 2. 2. Conviction of Offense below Jurisdiction or within Jurisdiction of Lower Court. Where the court has jurisdiction of the crime for State v. Raaf, 16 Ida. 411, 101 P 747; State v. Wear, 145 Mo. 162, 205, 46 SW 1099 (where it was said: "The pendency of a cause in court where jurisdiction exists, and has been acquired in a lawful manner is a test of the continuance of such jurisdiction, and of its valid exercise until final disposition is made of the cause, no matter how flagrant may be the errors which attend the exercise of such jurisdiction, nor how numerous and obvious may be the errors with which the record abounds, because the jurisdiction to decide right, being once conceded, such concession necessarily embraces the power to decide wrong, and a wrong decision though voidable, and though it may be avoided, yet until avoided is equally as binding as a right one; it can not be attacked collaterally; the only way its binding force can be escaped or avoided is by appeal or writ of error").

[a] Failure of a court after trial and conviction to make a complete record, as required by statute, did not detract from the jurisdiction of the court to try accused. In re Terrill, 144 Fed. 616, 75 CCA 418.

an

V.

73. State v. White, 71 Kan. 356,
80 P 589, 6 AnnCas 132; State
Grimes, 80 Wash. 14, 141 P 184.
74. Reg. v. Wiltshire, 8 L. T. Rep.
N. S. 242.

75. 141 P

State v. Grimes, 80 Wash. 14,
184.

76. State v. Grimes, 80 Wash. 14.
141 P 184; Lang v. Robinson, 72
W. Va. 243, 77 SE 970, 45 LRANS
1123.

77. Keizo v. Henry, 211 U. S. 146, 29 SCt 41, 53 L. ed. 125.

78. Miskimmins v. Shaver, 8 Wyo.

[b] Failure to read or repeat testimony to deaf defendant.-A per- 392, 58 P 411, 49 LRA 831. son convicted of murder in a state court will not be released on habeas corpus by the federal courts, on the theory that jurisdiction over the subject matter and the person of accused was lost by the failure of the trial court to have the testimony in the case read or repeated to accused who was unable, because of his almost total deafness, to hear the evidence. Felts v. Murphy, 201 U. S. 123, 26 SCt 366, 50 L. ed. 689.

79. Pye v. Gillis, 9 Ga. A. 397, 71 SE 594.

80. Ala. Fleming V. State, 107 Ala. 11, 18 S 263.

[c] An unauthorized discharge of the jury on Sunday over defendant's objection does not deprive the court of further jurisdiction of the case. and hence, although such discharge may be ground for plea of an acquittal or of former jeopardy on an attempt being made to retry defendant, it is not ground for discharge on habeas corpus. Hovey v. Sheffner. 16 Wyo. 254, 93 P 305, 125 AmSR 1037, 15 LRANS 227, 15 AnnCas 318.

[d] Unauthorized demand of trial by jury.-Under the act of Febr. 23,

Cal. Ex p. Donahue, 65 Cal. 474, 4
P 449; Peo. v. Fahey, 64 Cal. 342,
30 P 1030; Peo. v. Holland, 59 Cal.
364; Peo. V. English, 30 Cal. 214;
Ex p. Bell, 4 Cal. Unrep. Cas. 309,
34 P 641.
Conn.-State v. Brown, 24 Conn.

316.

Del.-State v. Scott, 20 Del. 538, 57 A 534; State v. Christie, 16 Del. 443, 43 A 263.

D. C.-Ex p. Robinson, 10 D. C. 418.

Fla.-Winburn v. State, 28 Fla.
339, 9 S 694; McLean v. State, 23
Fla. 281, 2 S 5.

Iowa. State v. Jarvis, 21 Iowa 44;
State v. Stingley, 10 Iowa 488; State
v. Shepard, 10 Iowa 126; State V.
Church, 8 Iowa 252.

La.-State v. Malloy, 30 La. Ann.
61; State v. De Laney, 28 La. Ann.

Mich.-Peo. v. Schoeneth, 44 Mich. 489, 7 NW 70.

Minn. Boyd v. State, 4 Minn. 321. N. H.-State v. Webster, 39 N. H. 96; State v. Arlin, 27 N. H. 116.

N. Y.-Peo. v. Rose, 15 NYS 815. N. C.-State v. Lucas, 139 N. C. 567, 51 SE 1021, 4 AnnCas 764; State v. Fritz, 133 N. C. 725, 45 SE 957; State v. Fesperman, 108 N. C. 770, 13 SE 14; State v. Johnson, 94 N. C. 863; State v. Speller, 91 N. C. 526; State v. Ray, 89 N. C. 587; State v. Reaves, 85 N. C. 553; State v. Cumpton, 1 N. C. 200.

Oh.-Stewart v. State, 5 Oh. 241. Tenn.-State V. Bowling, 10 Humphr. 52.

Tex.-Johnson V. State, 17 Tex. 515; Montgomery v. State, 4 Tex. A. 140; Ingle v. State, 4 Tex. A. 91; Harberger v. State, 4 Tex. A. 26, 30 AmR 157.

Va.-Reynolds v. Com., 94 Va. 816, 27 SE 427.

81. Reg. v. Young Quai, 8 Hawaii 282.

82. State V. Silhoffer, 48 Iowa 283; Odom v. State, 8 Okl. Cr. 540, 129 P 445.

83. Peo. v. Hubbard, 22 Cal. 34; In re Justus, 65 Kan. 547, 70 P 354; State v. Evans, 13 Mont. 239, 33 P 1010; State v. Weltner, 7 N. D. 522, 75 NW 779 (holding that a preliminary examination conducted by a justice after defendant has, in due time, filed a proper affidavit for transfer to another justice is void).

84. Ottumwa v. Schaub, 52 Iowa 515, 3 NW 529; State v. Brumley, 53 Mo. A. 126.

85. Cal. Ex p. Wright, 119 Cal. 401, 51 P 639.

Ind.-Turner v. Conkey, 132 Ind. 248. 31 NE 777, 32 AmSR 251. 17 LRA 509 [overr Smelzer v. Lockhart, 97 Ind. 315].

Iowa.-Ottumwa V. Schaub, 52 Iowa 515, 3 NW 529.

Kan. In re Justus, 65 Kan. 547, 70 P 354

Mo.-State v. Brumley, 53 Mo. A.

126.

sonable period.86 Where an adjournment may be had under a statute for a special cause, an adjournment may be had by consent where this cause does not exist.87

[§ 251] b. Postponement of Judgment or Sentence and Expiration of Term. In the absence of statutory provision to the contrary, a court has jurisdiction to pronounce judgment of conviction or to pronounce sentence at a term subsequent to that in which the verdict was rendered.88 The expiration of the term does not oust its jurisdiction.89 But in the absence of a permissive statute, the indefinite postponement of sentence upon one convicted of crime deprives the court of jurisdiction to pronounce sentence at a subsequent term;90 such postponement is in effect a discharge of the prisoner, and therefore ousts the court, after the expiration of the term, of further authority over him.91

[252] 6. Determination as to Sanity of Accused. Where it is alleged that accused is insane when sentence is to be imposed, the court has discretion to postpone sentence to inquire into his sanity; but the fact that proceedings are then pending in another court to determine the sanity of aceused does not destroy jurisdiction to sentence.93

ute which attempts to confirm and legalize its subsequent action is unconstitutional as in conflict with the United States constitutional provision that no state shall deprive any person of life, liberty, or property without due process of law.94

[§ 254] K. Presumption as to Jurisdiction-1. Courts of General Jurisdiction. A court of general jurisdiction is presumed to have acted within its powers, and the burden is on accused to show affirmatively that it had no jurisdiction, unless facts showing want of jurisdiction affirmatively appear on the record.95 This presumption applies with peculiar force after lapse of time.96 But where a court of general jurisdiction exercises a special jurisdiction and adopts procedure in derogation of common-law practice, there is no presumption as to its jurisdiction of the subject matter, the person, or the property;97 but jurisdictional facts must be averred and proved.98 Where the substantive parts of a proper record" are wanting their existence cannot be supplied by the presumption that all things were rightly done.99

[255] 2. Courts of Limited Jurisdiction. The record of a criminal court of limited jurisdiction must show affirmatively such facts as confer jurisdiction, and generally no presumption is indulged in favor thereof, But the presumption that an official did his duty and acted within his authority is recognized in connection with criminal courts, 89. See cases supra note 88. [a] 'Plea of guilty,-A court has jurisdiction to sentence upon a plea of guilty, although the plea was made at a prior term. Com. v. Chase, Thach. Cr. (Mass.) 267.

[253] 7. Curative Statutes. Where by statute criminal jurisdiction has been taken from a court, it has no jurisdiction thereafter, and a stat[a] The proper remedy is by mandamus to compel a change of venue. State v. Clayton, 34 Mo. A. 563.

86. State v. Valure, 95 Iowa 401, 64 NW 280; State v. Davis, 194 Mo. 485, 92 SW 484, 4 LRANS 1023, 5 AnnCas 1000; State v. Wear, 145 Mo. 162, 46 SW 1099; Lowe v. State, 118 Wis. 641, 96 NW 417.

"By asking for a continuance he [defendant] thereby recognized and acknowledged the continued pendency of the cause in the trial court, and hence cannot change his position, and assert that all jurisdiction of the lower court was ousted and lost by reason of his unsuccessful attempt to enter a nolle. He is estopped from taking in this court any such inconsistent and contradictory positions." State v. Wear,

supra.

87. Peo. v. Hux, 68 Mich. 477, 36 NW 229; Lowe v. State, 118 Wis. 641, 96 NW 417.

[a] Adjournments to procure witnesses see State v. Bliss, 21 Minn. 458.

88. Cal-Peo. V. Felix, 45 Cal. 163.

Me-Tuttle v. Lang, 100 Me. 123, €0 A 892.

Miss. Smith v. State, 61 Miss. 754. Mo.-State v. Watson, 95 Mo. 411, 8 SW 383.

N. Y.-Peo. v. Everhardt. 104 N. Y. 591. 11 NE 62 [aff 5 N. Y. Cr. 91]; Ferris v. Peo., 35 N. Y. 125, 31 How Pr 140; Lowenberg v. Peo., 27 N. Y. 336, 26 HowPr 202.

18.

Pa.-Williams v. Com., 29 Pa. 102.
Tenn.-Greenfield v. State, 7 Baxt.

90. U. S.-U. S. v. Wilson, 46 Fed. 748.

Colo.-Grundel v. Peo., 33 Colo. 191,
79 P 1022, 108 AmSR 75.

Ill.-Peo. v. Barrett, 202 I11. 287, 67
NE 23, 63 LRA 82, 95 AmSR 230:
Peo. v. Allen, 155 Ill. 61, 39 NE
568, 41 LRA 473.

Mass.-Com. v. Maloney, 145 Mass.
205, 13 NE 482.

Mich.-Weaver v. Peo., 33 Mich.

296.

Utah. In re Flint, 25 Utah 338,
71 P 531, 95 AmSR 853.

91. See cases supra note 90.
Suspension of sentence see infra §

3041.

92. State v. Gould, 40 Kan. 258,
19 P 739.
93.
State v. Gould, 40 Kan. 258,
19 P 739.

94. State v. Doherty, 60 Me. 504,
511 (where the court said: "It is
not enough that the mere forms of
law are observed; there must, also,
be present the actual essence of judi-
cial right and authority. If such
void claims and empty forms could
impart legality to criminal proceed-
ings, it is plain to see that the law
might be perverted for the purposes
of wrong and oppression").

S 406.

Ind.-Davidson v. State, 135 Ind.
254, 34 NE 972; Nichols v. State, 127
Ind. 406, 26 NE 839.

Ky. Hord v. Com., 32 SW 176, 17
KyL 570.

Mo.-Ex p. McLaughlin, 210 Mo.
657, 109 SW 626; State v. Wear, 145
Mo. 162, 46 SW 1099.

N. J.-State V. Davidson, 75 N.
J. L. 62, 66 A 945.

N. M.-Ex p. Cica, 18 N. M. 452,
137 P 598, 51 LRANS 373.

N Y.-Smith v. Peo., 47 N. Y. 330 (where it was said in substance that the rule that every reasonable doubt

on any question of law or fact bearing on the guilt or innocence of accused should be solved in his favor does not apply to the jurisdiction of the court, but doubts as to this may be solved in favor of the tribunal, unless it palpably violates some established rule of law).

N. C.-State v. Carpenter, 111 N. C. 706. 16 SE 339.

Okl.-Ex p. Sizemore, 9 Okl. Cr. 376, 131 P 1108.

S. C.-State v. Hatcher, 45 S. C. L. 525.

And see Courts § 146 et seq.

[a] County courts are courts of record, and entitled to the same presumption of jurisdiction as are the district courts. Ex p. Sizemore, 9 Okl. Cr. 376, 131 P 1108.

96. State v. Hatcher, 45 S. C. L. 525 (holding that after a lapse of twenty years from the final sentence the law creates a presumption of regularity in spite of the fact that it does not appear that the court had jurisdiction, and especially where defendant has made a default).

97. Godwin v. State, 24 Del. 173, 74 A 1101, AnnCas1913E 940; Ex p. Gudenoge, 2 Okl. Cr. 110, 100 P 39. 98. See cases supra note 97. See also Courts § 148.

99. Dougherty v. Com., 69 Pa. 286. 1. Ala. Atkinson V. State, 122 Ala. 95, 25 S 624; Wiley v. State, 117 Ala. 158, 23 S 690.

Cal.-Ex p. Kearny, 55 Cal. 212; In re Giannini, 18 Cal. A. 166, 122 P 831. Colo.-Wolfe V. Abbott, 54 Colo. 531, 131 P 386. Fla.-Porter v. State, 62 Fla. 79, 56 S 406.

111.-Chicago v. Murray, 185 Ill. A.

351.

Ind.-Cobb v. State, 27 Ind. 133; Holland v. State, 22 Ind. 343.

La.-State v. Rose, 125 La. 1080, 1085, 52 S 165 [quot Cyc] (juvenile court).

Me.-State v. Hall, 49 Me. 412; State v. Hartwell, 35 Me. 129 (where it is held that nothing can be presumed in favor of the jurisdiction of a justice of the peace, as his powers are altogether statutory).

Mass.-Com. v. Connor, 155 Mass. 134, 29 NE 204; Com. v. Jeffts. 14 Gray 19, Com. v. Fitzgerald, 14 Gray 14.

where the record is silent,2 so that if jurisdiction is obtained the validity of a judgment will not be affected by mere irregularity and want of form in the proceedings.3

[256] L. Waiver of Objections-1. In General. The objection that a court has no jurisdiction of the person of accused may be waived. It must be taken when he is arraigned, and is waived if he pleads and goes to trial on the merits. Thus an arrest without a warrant is not a jurisdictional defect, and it is waived where the persons arrested appear in court and submit to arraignment without objection. But the objection that the court is not a legal court, or that it has no jurisdiction of the offense, cannot be waived, and may therefore be

Mo.-State v. Alford, 142 Mo. A. 412, 127 SW 109; State v. Sexton, 141 Mo. A. 694, 125 SW 519.

N. Y.-Peo. v. McLaughlin, 57 App. Div. 454, 68 NYS 246; Peo. v. Quimby, 72 Misc. 421, 131 NYS 349; Peo. v. Miller, 14 Johns. 371.

N. C.-State v. Shelly, 98 N. C. 673, 4 SE 530.

Oh.-Montgomery v. State, 7 Oh.

St. 107.

Pa.-Com. v. Gillingham, 6 Phila.

321.

Tex.-Weatherford v. State, (Cr.) 28 SW 814; Bailey v. State, (A.) 15 SW 117; Harris v. State, 14 Tex. A. 676.

And see Courts § 150.

[a] A police magistrate's court is a court of inferior jurisdiction, and its record must recite the facts necessary to confer jurisdiction. Wolfe v. Abbott, 54 Colo. 531, 131 P 386.

2. State v. Watson, 56 Conn. 188, 14 A 797: Rataree v. State, 62 Ga. 245; Tharp v. Com., 3 Metc. (Ky.) 411; Com. v. Lynn, 154 Mass. 405, 28 NE 289; Com. v. O'Donnell, 150 Mass. 502, 23 NE 217.

taken at any time. In order that the appearance of defendant may constitute a waiver it must be voluntary. A special appearance by counsel, for the purpose of making the point that a summons was not properly served on defendant, does not constitute a waiver."

[§ 257] 2. By Plea. The objection that the court has no jurisdiction of the person of defendant, whether by reason of some irregularity in the proceedings,10 or because of some defect in the constitution of the court which does not prevent it from being a de facto court, or for other reasons, is waived by defendant by pleading not guilty and going to trial, or by pleading guilty.12 But the objection that a court has no jurisdiction of the sub

3. Kane v. State, 70 Md. 546, 17 A 557.

[a] Election by accused.-If it ap-
pears from the entries of a justice
that 'accused elected, as allowed by
statute, to be tried before him in-
stead of being held for trial in the
circuit court by jury on indictment,
jurisdiction of the person is suffi-
ciently shown. Kane v. State, 70 Md.
546, 17 A 557.

4. See cases infra this section.
5. Ga. -Haygood v. State, 10 Ga.
A. 394, 73 SE 423.
Ill.-Peo. v. Viskniskki, 155 Ill. A.
Ind.-Ledgerwood V. State, 134
Ind. 81, 33 NE 631.
Ind. T.-Gardner v. U. S., 5 Ind. T.
150, 82 SW 704.

292.

Kan. In re Brown, 62 Kan. 648, 64 P 76; State v. Woods, 49 Kan. 237, 30 P 520. And see Rice V. State, 3 Kan. 141.

La.-State v. Rose, 114 La. 1061,
38 S 858; State v. Harris, 107 La.
325, 31 S 782.

Mich.-Peo. v. Hanifan, 98 Mich.
32, 56 NW 1048.
Fitzgerald, 51
Miss.

Minn.-State

V.

V. State, 74

Minn. 534, 53 NW 799.
Miss. Holley
878, 21 S 923.
Mo.-State V. Mitchell, 229 Mo.
683, 129 SW 917, 138 AmSR 425.
N. Y.-Matter of Blum, 9 Misc.
571, 30 NYS 396.

N. D.-State v. Russell, 18 N. D.
357, 121 NW 918.
Okl.-Brown

v. State, 9 Okl. Cr.

382, 132 P 359.
Pa.-March v. Com., 10 Pa. Cas.
479, 14 A 375.

S. C.-State v. Bethea, 88 S. C.
515, 70 SE 11; State v. Browning, 70
S. C. 466, 50 SE 185.

Tex.-Banks v. State, 52 Tex. Cr.
167, 105 SW 821.
Va.-Jones v. Morris, 97 Va, 43, 33
SE 377.
Wyo.-Hollibaugh V. Hehn, 13
Wyo. 269, 79 P 1044.
Eng. Dixon v. Wells, 25 Q. B. D.
249.

[a] Minor jurisdictional facts.The presumption in favor of the validity of a judgment applies to a judgment of a justice's court, and dispenses with the proof of minor jurisdictional facts. State v. Watson, 56 Conn. 188, 189, 14 A 797 (where the court said: "It is conceded that the offense charged in the complaint is one for which the justice had power to bind the defendant over to the Superior Court. The only question is whether, to justify the exercise of that power, the justice should have stated on the record that the offense was of so aggravated a nature as to require a binding over. But the justice found the defendant guilty and ordered him bound over to the Superior Court, and this judgment, by necessary implication, indicates that he considered the offense so aggravated as to transcend his final jurisdiction. As he could not lawfully bind the accused over without such opinion, the general presumption in favor of the validity of a judgment supplies in law the omission complained of. The extremely [a] Necessity for waiver in writtechnical character of the objectioning see Huff v. State, 29 Ga. 424. made in behalf of the defendant will [b] Right to transfer.-Where perhaps more strongly appear if we take the other alternative provided for in the statute and suppose that the justice had found the accused guilty, and had imposed a punishment within the limitations of his exclusive jurisdiction, but had omitted from the record the further finding that in his opinion no greater punishment ought to be imposed, [c] Improper transfer.-An would it be for a moment contended jection to the jurisdiction, in that that the judgment was void? And the case was improperly transferred yet, the argument for this position from the district to the county court, would have precisely the same force must be made before the party anas in the present case, for the jus- nounces ready for trial, and comes tice's opinion is just as much a pre- too late on motion in arrest of judgrequisite to his assuming final juris- ment. Peo. v. Hall, 169 N. Y. 184, diction as it is to the binding over"). 62 NE 170; Banks v. State, 52 Tex.

Alta. In re Paul, 5 Alta. L. 442, 20 CanCrCas 161.

And see the cases infra notes 10, 12.

one indicted in the circuit court did
not demand a transfer of the case
to the law and equity court of the
county within a reasonable time after
his arrest and after he had given
bond for his appearance, he waived
the right to have the case
ferred. Long v. State, 165 Ala. 101,
51 S 636. See also supra § 241.

trans

ob

Cr. 167, 105 SW 821; Palmer v. State, (Tex. Cr.) 70 SW 206. See also supra § 242.

6. Ala.-Dillard v. State, 137 Ala. 106, 34 S 851.

Minn.--State v. Nugent, 108 Minn. 267, 121 NW 898.

N. Y.-Peo. v. Jeratino, 62 Misc. 587, 116 NYS 1121; Peo. v. Burns, 19 Misc. 680, 44 NYS 1106, 12 N. Y. Cr. 247.

Pa.-York City v. Hatterer, 48 Pa.
Super. 216.
V. Hehn,

Wyo.-Hollibaugh
13
Wyo. 269, 79 P 1044.
7. La.-State V. Beebe, 127 La.
493, 497, 53 S 730 [cit Cyc].

Mo.-State v. Lawrence, 45 Mo. 492. N. Y.-McCarg v. Burr, 186 N. Y. 467, 79 NE 715 [aff 106 App. Div. 275, 94 NYS 675]. Okl.-Brown

v. State, 9 Okl. Cr. 382, 132 P 359. Or.-State v. Goodall, 82 Or. 329, 331, 160 P 595 [cit Cycl.

Tex.-Hamilton v. State, (Cr.) 145

SW 348.

Utah.-State v. McNally, 23 Utah 277, 64 P 765; State v. Morrey, 23 Utah 273, 64 P 764.

See infra § 257.
8.

Brosde v. Sanderson, 86 Wis. 368, 57 NW 49 (holding that, where a justice on granting a continuance lost jurisdiction of the case because of failure to make the proper entry, the subsequent appearance of defendant who had been released from imprisonment on giving bond to appear was not voluntary so as to constitute a waiver of the defect or a loss of jurisdiction).

9. Pearks v. Richardson, [1902] 1 K. B. 91.

10. Com. v. Carney, 153 Mass. 444. 27 NE 9; Ex p. Graye, 36 Mont. 394, 93 P 266 (irregularities in the transfer of a cause).

11. Case v. State, 5 Ind. 1; In re Brown, 62 Kan. 648, 64 P 76; State v. Alling, 12 Oh. 16; State v. Anone, 11 S. C. L. 27.

[a] Illustrations.-(1) The objection that the court has no jurisdiction on account of the illegality of the judge's commission (Case v. State, 5 Ind. 1; State v. Alling, 12 Oh. 16; State v. Anone, 11 S. C. L. 27) (2) or that the statute creating the court before which the preliminary examination was had was unconstitutional (In re Brown, 62 Kan. 648, 64 P 76), must be taken at the trial. 12. Ala. Reeves v. State, 96 Ala. 33, 11 S 296. Conn.-State v. Bishop, 7 Conn.

181.