
    Ware v. The State.
    
      Enticing Employees of Another.
    
    [Decided May 8, 1906,
    41 So. Rep. 153.]
    1. Indictment; necessity'; Enticing Employes. — A justice of. the peace has no jurisdiction to try one for a violation of § 5505 of Code, as amended by General Acts 1901, except as a committing magistrate to bind over, and after binding over, the defendant cannot be tried by a county or circuit court until an indictment has been preferred against him. And the act creating the County Court of Elmore (nocal Acts, 1898-99, p. 257) does not dispense with the necessity for indictment. '
    Appeal from Elmore County Court.
    Heard before Hon. H. J. Lancaster.
    This was a prosecution commenced by affidavit in the justice court returnable to the justice of the peace. The affidavit charges that the defendant knowingly interfered with, hired, engaged, enticed away or induced Coleman Smith, a minor, to leave or quit the services of one Meadows his adopted father or guardian, to whom such sendee is lawfully due without the consent of said Meadows given in writing or in the presence of some credible person. The endorsements on the warrant show that it Avas executed by arresting the defendant in open court, and his discharge on bail in open court. All this appears to have happened in the justice court. The trial Avas had in the county court of Elmore county where before entering on the trial, the defendant filed a motion objecting to being put upon the trial because of a Avant of jurisdiction in this court; because the record in said cause shows that the justice of the peace did not have final jurisdiction but-adjudged the defendant guilty;' because the trial before the justice of the peace Avas before him as a committing magistrate and the defendant should have been bound over to aAvait the action of the grand jury; and because the trial before the justice of the peace was a committal trial, and this court cannot, acquire jurisdiction until an indictment is preferred by the grand jury. This motion was overruled and defendant was convicted.
    
      E. S. Titiwpkn for appellant —
    The court should have sustained the objection of the defendant to being placed upon trial in the county court. The facts show that the1 defendant was tried before a justice of peace and admitted to bail. The only jurisdiction the justice of peace had was to act as a committing magistrate and bind the defendant over to aAva.it the. action of the grand jury. The act- creating the Elmore county court does not gWe that court appellate jurisdiction, nor do aAvay Avith the requirement that an indictment is necessary to put one upon his trial after commitment by a justice of the peace. (Other matters'are discussed in the brief pertaining to the action of the court in reference to- evidence and charges and as to a proper construction of the section under Avhicli the affirlaAÚt Avas draAvn, but as these things are. not discussed in tlic'Opinion, it is not necessary to here set. them out.)
    Marstjy WmsoN, Attorney-General ■ for'State.' —
    While it is trhe that the justice of the peace liad no jurisdiction of the defendant and Avas only authorized to bind him over) the fact that he entered a judgment of guilty avíis in effect 'a-finding that there Avas probable cause for believing him guilty, and under the authority of section 19, of the act creating the county court of Elmore (Doral acts, 1898-9, p. 257) the justice of the peace rightly conditioned the bond for the defendant’s appearance at the next term of the county court. (The Attorney General also discusses the other questions raised by record, hilt it is deemed unnecessary to set them out here.)
   ANDERSON, J.

The defendant Avas tried by a justice of the pcia.ce for the violation of section 5505 of the Oode •of 1890 a,s amended by the act of 1901, page 1215, upon an affidavit made before him, and upon a AATtrrant issued hv and returnable to him. 'ftp had no jurisdiction to try the case, except as a committing magistrate, and as such bind him' over to the next, term of the county court of Elmore county. The legal (effect of binding the defendant over Avas, that he await the action of the grand jury, am! until he was indicted, he could not haAre been tried upon said charge by the countjr or circuit court.

The act creating the county, court of Elmore, county, 1898-99 page 257, does not dispense with the necessity of an indictment in cases similar to this one. The county court, not having jurisdiction to try this case upon the affidavit, the prosecution should have been dismissed.'

The judgment of the county court is reversed'and one is here rendered discharging the defendant.

Weakley, C. J., and Tyson and Simpson, JJ., concur.  