
    Ex parte Amanuel Burke.
    1, OEUMtN'ALLA'W. Examination of accused. Defective affidavit. Duty of committing court.
    
    If a justice of the peace, upon examination of one accused of a criminal offence, is satisfied that the offence committed by the accused is one of which the Circuit Court alone has plenary jurisdiction, it is his duty to require of the defendant a recognizance to appear before that court, notwithstanding the fact that the affidavit upon which the warrant of arrest is issued may only charge a misdemeanor within the jurisdiction of the justice of the peace.
    2. Same. Affidavit. Warrant. Duty of justice of peace.
    
    An affidavit before a justice of the peace, charging a criminal offence, serves to procure the warrant for the arrest of the accused, and when the prisoner is brought before the justice of the peace, he should determine the grade of the offence proved, and then render his judgment according to the directions of the statute as applicable to the case developed.
    Appear from the decision of Hon. F. A. Critz, Chancellor ■of the Sixth Judicial District, on habeas corpus.
    
    Atnanuel Burke was arrested under a warrant from a justice ■of the peace, based upon an affidavit charging that he “ did feloniously make an assault and battery upon the person of William Henry Chandler, with a certain deadly weapon, to wit, a knife, and did cut said Chandler in a dangerous and •cruel manner, not in necessary self-defence,” etc. He ivas brought before the justice of the peace on the 31st of August, 1880, who, after an examination, entered his "judgment, reciting that “the defendant is guilty as charged,” and committing him to jail to await the further order of the justice, or until otherwise legally discharged. The justice’s mittimus on this judgment recites that, Burke having been examined before him “on a charge of assault and battery, and the said charge having been established,” the sheriff is commanded to receive and keep the prisoner as therein directed.
    On the 2d of September, 1880, the justice of the peace entered another judgment, to the effect that the prisoner had been brought before the court for a further examination, and, a physician having testified that Chandler’s wounds were improving and he was apparently out of danger, the prisoner was recommitted to jail uutil the next term of the Circuit Court to answer the charge against him, but with the privilege of giving a bond of $300 for his appearance. The mittimus on this judgment recited, substantially, that Burke had been arrested upon a charge of assault and battery, and, upon examination, the charge had been established; he had been bound over to appear at the next term of the Circuit Court, and his bond fixed at $300, and that the sheriff should receive and keep him safely to appear before the Circuit Court, unless he should give the bond prescribed.
    On the third day of September, 1880, Burke sued out a writ of habeas corpus. He had a hearing upon this writ, and was remanded to jail, to be held by the sheriff in accordance with th& mittimus in his hands. Erorn the chancellor’s decision the prisoner appealed.
    
      A. B. Connell, for the appellant.
    The affidavit upon which was issued the warrant for Burke’s-arrest did not contain the charge of any intent, and, therefore,, did not constitute a charge of felony. Code 1871, sect. 2497.
    The first judgment of the justice of the peace was void because it did not state the time of commitment. A judgment must be certain and definite. The judgment remanding the appellant to jail was in violation of that provision of the Constitution which prohibits any person’s life or liberty being put twice in jeopardy for the same offence. The appellant was tried first on the 31st of August, and committed without the pi’ivilege of bail; and on the 2d of September he was again tried and committed, with the right to give bond for his appearance.
    The affidavit only charged the appellant with an assault and battery, the judgment found him guilty of assault and battery only, §nd the mittimus recited a finding of only assault and battery; therefore the justice of the peace should have fixed the punishment of the offence, it being a mere misdemeanor. Code 1871, sect. 1304.
    
      T. G. Catchings, Attorney-General, contra.
    
   Campbell, J.,

delivered the opinion of the court.

The affidavit on which the justice of the peace issued a warrant for the accused does not charge him with a felony, but the facts stated may amount to a felony; and if the justice was satisfied that the accused was guilty of a felony, it was his duty to require of him a recognizance to appear before the Circuit Court, and he was not illegally detained by the sheriff’ under the mittimus of the justice of the peace. The affidavit served to procure the warrant for the arrest of the party •charged, and when he was before the justice of the peace it was the duty of that officer to determine as to the grade of the offence proved against the prisoner, and if found to be such that the Circuit Court alone had cognizance of it, it was proper to require a recognizance to appear before the Circuit Court.

Judgment affirmed.  