
    STATE v. THAD. CALE.
    (Filed 10 March, 1909.)
    1. Pleas — Former Conviction — Nature of Action — “Not Guilty”— Joinder of Action — Agreement.
    The plea of former conviction is not treated in many respects as one involving the substantial question of guilt of innocence, but as one approaching more nearly the determination of a civil issue, and such plea with that of “not guilty” may, upon agreement of parties, be determined before one and the same jury.
    2. Process, Defective — Warrant—Arrest—Special Officer, Appointment of — Waiver—Jurisdiction—Judgment Valid.
    Defective process, by reasmi of a warrant of arrest not being-signecl or the deputation of a special officer not being in writing (Revisal, secs. 8158, 935), may be waived by the appearance of the prisoner before a court- having jurisdiction which decides the case; and whatever may be the rights of the defendant against the officers making the arrest, the validity of the judgment is not thereby affected.
    3. Judgments — Collusion, What is Not — Validity of Trial — Pleas— Former Conviction.
    A conviction before a justice of the peace is not objectionable upon the ground that it is collusive and not adversary, when it appears that the defendant informed the magistrate that he had had a fight and would have to suffer for it; that he requested him to set a time for trial convenient to his work; that affidavit was made, at the justice’s instance, by a third party, several eyewitnesses were summoned and examined at the trial, and the assaulted party and his brothers, who were eyewitnesses, were notified of the time and did not appear, though waited for; and the validity of this trial will be upheld and the plea of former conviction of the same offense sustained. , (State v. Moore, 136 N. O., 581, cited and distinguished.)
    INDICTMENT for assault with, deadly weapon on one Grover Harrell, tried before W. B. Allen, J., and a jury, at September Term, 1908, of Edgecombe.
    Defendant entered the plea of “not guilty” and “former conviction,” it having been agreed by consent that the two pleas could be beard together. After the evidence was all in, there being no material dispute in the same on the question of former conviction of simple-assault, it was further agreed that the court-should submit the question of assault with a deadly weapon to the jury and take a verdict thereon, subject to the determination of the plea of former conviction by the court as on facts agreed, in case there was a verdict of simple assault only. The jury rendered a verdict of not guilty of assault with a deadly weapon, but guilty of simple assault; thereupon the court found the facts as to the alleged former conviction, and the same seem to be correctly epitomized in the following statement:
    The defendant had a fight with one Grover Harrell, in No. 9 Township, on 14 March, 1908. On 15 March, 1908, the defendant saw J. L. D. Corbett, a justice of the peace, and told him that he had a fight and expected he would have to pay for it, and asked that, if a warrant was issued for him, the justice would make it returnable about 12 o’clock M., as he and his hands were at work in the wpods and would be at home at that time for dinner. He also gave the names of those present at the fight, among which was the name of Silas Crisp, who worked with the defendant and who is a cousin of the prosecuting witness, Grover Harrell. During the morning Crisp was seen by the justice in the town and required to make the usual affidavit Upon which to have a warrant for an affray. The usual warrant was issued, but, while Orisio actually swore to the affidavit, neither he nor the justice signed the affidavit or warrant. There being no constable or other officer in said township authorized to serve process, the justice delivered the warrant to one Wals-ton, directing him to summon the prosecuting witness, Grover Harrell, and also his brother, who was at the fight, and his father, as well as the witnesses for the defendant. Walston went to the house of the prosecuting witness with the warrant, and upon the return reported to the justice that the Harrells said they would not attend. Neither the authority to Walston to execute nor his return were in writing. The defendant was not arrested, but while Walston had gone to summon the witnesses the justice saw the defendant and informed him of the warrant and the time of trial, and the defendant voluntarily attended. The justice delayed the trial until 2 o’clock P. M. to see if the prosecuting witness would attend. He did not appear, and the justice examined several witnesses who saw the fight, two of whom were not related to tbe defendant, but were cousins of tbe prosecuting witness. He also examined Dr. C. B. Walton, wbo bad seen and talked witb tbe prosecuting witness since tbe fight, and, upon tbe 'testimony of all these, adjudged tbe defendant guilty and that be pay a fine of $1 and $6.65 costs: This judgment was in -writing and signed by tbe justice, and was paid. Tbe witnesses examined by tbe justice were defendant’s witnesses in this trial, and tbe justice wbo tried him was bis friend in tbe Superior Court and aided bis counsel in tbe trial and was surety for bis appearance at September Term, 1907.
    Upon these facts tbe court overruled tbe plea of former conviction, and, on tbe verdict of guilty rendered by tbe jury, imposed a fine of $1, and defendant excepted and appealed.
    
      Attorney-General for the State.
    
      G. M. T. Fountain for defendant.
   Hoke, J.,

after stating tbe case: According to the strict rules of criminal procedure, tbe pleas of “not guilty” and “former conviction” could not be entertained and determined before one and tbe same jury; and it is further recognized and established that, on a plea of former conviction, when material questions of fact are involved in tbe issue, as in tbe case of dispute as to tbe identity of tbe parties, tbe determination of such plea is for tbe jury. But, as shown in a learned opinion by tbe present Chief Justice, in State v. Ellsworth, 131 N. C., 773, tbe plea of former conviction is not treated in many respects as one involving tbe substantial question of guilt or innocence of defendant, but as one approaching more nearly tbe determination of a civil issue, and by consent it may be entertained and determined at tbe same time witb a plea of not guilty, and, when so agreed upon, may be beard and decided by tbe court. There was no error, therefore, in tbe method by which, tbe cause has been determined. State v. Taylor, 133 N. C., 755; State v. White, 146 N. C., 608; State v. Ellsworth, 131 N. C., 773; State v. Akerman, 64 N. J. L., 99.

While we bold that tbe proceedings below have been in all respects regular, we do not take tbe same view of tbe facts relevant to defendant’s plea of former conviction which seems to have impressed the learned judge who tried the cause below. From the facts it appears that defendant, convicted and fined in the present proceedings for a simple assault on Grover Harrell, has heretofore been convicted and fined for the same offense before a justice of the peace, and has paid the fine and the costs incident to that prosecution. The justice’s court had jurisdic-[ tion of the crime, the parties 'and the offense are the same, and, unless the proceedings before the justice were a nullity, the defendant has a constitutional right to go quit of further molestation by reason of this charge. A second conviction in such case would be contrary to the law of the land.

True, the warrant of the justice was unsigned and the deputation of the special officer was unwritten, and the statute in express terms requires the one (Revisal, sec. 3158), and by fair intendment would seem to require the other (Revisal, sec. 935), certainly when the precept is written, and, except in cases of great emergency, this last form should be observed; but both of these requirements are for the better protection of the officers, general or special, and for the protection and security of the defendant. When considered in reference to process by which a defendant may be brought into court on a criminal charge, they may be waived by him; and if a defendant voluntarily appears or is forcibly brought before a court having jurisdiction to hear and determine the cause, and such court does hear and decide it, whatever may be the rights of the defendant against the officers, in the absence of other objection, the defects suggested in the process do not in any way affect the validity of the .judgment rendered. Commonwealth v. Henry, 61 Mass., 512; Bishop’s New Criminal Procedure, sec. 235, subsec. 1;' 12 Cyc., 303.

In Commonwealth v. Henry, supra, Metcalf, J., for the Court, said: “As the magistrate had jurisdiction, and everything was right except the process, we are of opinion that the defendant, by not objecting to the process while before-the magistrate, waived all objections to it, and the ruling of the court was correct.”

And in Bishop, supra, the author says: “From the principles stated, it seems, if a warrant of arrest is insufficient or void, yet, if the accused person is brought before the magistrate under it, he is not therefore to be set at liberty, whatever may be his rights as against the officer and others connected with its proceedings.”

Nor do we think it permissible to hold the proceedings before the justice void, under the doctrine recognized and applied with us in the case of State v. Moore, 136 N. C., 581, to the effect that a conviction of a person before a justice of the peace which is collusive and not adversary is void. In that case it ajipeared and was admitted that' defendant swore out a warrant against himself, and that the justice, without notice to the injured party or to anyone else, and without hearing any evidence except defendant’s own statement, disposed of the case. And on these facts Justice Walker, in his well-considered opinion, states the principle and the reason upon which it is properly made to rest, as follows: “If one procures himself to be arrested and prosecuted for an offense which he has committed, thinking to get off with a slight punishment and to bar any future prosecution carried on in good faith, and if the proceeding is really instituted and managed by himself, he is, while thus holding his fate in his own hand, in no jeopardy. The State is no party in fact, but only such in name. The magistrate, under such circumstances, adjudicates nothing. 'All is a mere puppet show, and every wire is moved by the defendant himself.’ The judgment, therefore, is a nullity and is no bar to a real prosecution. 1 Bishop’s Or. Law (6th Ed.), sec. 1010. In Holloran v. State, 80 Ind., 586, the Court fully sustains and approves the doctrine as thus substantially laid down by Bishop, and adds: ‘If the whole case is controlled and managed by the accused, there are no adverse parties, and when this is so, there cannot in the true sense of the term be a former conviction or acquittal.’ ”

But no such facts are presented in the case we are considering. • It is true,.the defendant is said to have.first notified the magistrate of the occurrence, but the ease states the facts as to this notice to be that defendant told the justice he had had a fight and would have to suffer for it, and only asked if a warrant was issued it would be made returnable at 12 o’clock, as defendant and bis bands would at tbat bour be in from tbe woods, where they were at work. Tbe affidavit was made, at tbe instance of tbe justice, by one Crisp, wbo is marked on tbe warrant as a State’s witness, several eyewitnesses of tbe occurrence were summoned and examined, and Grover Harrell, tbe assaulted party, and bis brothers, wbo bad been present at tbe fight, and bis father, were notified to attend, and tbe case was delayed some time for their coming; and, referring to'the trial, tbe case further states: “None of them (Grover Harrell, bis brothers, etc.) appeared, and tbe justice examined several witnesses wbo saw tbe fight. Two of them- were not of kin to tbe defendant, but were cousins of Grover Harrell, and also Dr. C. B. "Walton, wbo bad seen and talked with Grover Harrell since tbe fight occurred.” And thereupon defendant was adjudged guilty and tbat be pay a fine of $1 and costs amounting to $6.65. As tbe case appears to us, there was no evidence of collusion, and there does not seem, wittingly or unwittingly, to have - been any imposition, for tbe court made tbe same disposition of tbe case as tbe trial justice. We are of opinion, therefore, and so bold, tbat there was a valid trial and disposition of this cause before tbe justice of tbe peace; and, on tbe facts presented and agreed upon, tbe plea of former conviction. should have been determined in defendant’s favor.

This will be certified, to tbe end tbat tbe verdict of guilty rendered by tbe jury be set aside, tbe plea of former conviction sustained, and tbat defendant go without day. State v. Taylor, supra.

Reversed.

Walker, J., concurs in result.  