
    State of Mississippi v. Jeremiah M. Tate.
    1. Justice of the Peace. Place of holding court. Jurisdiction. Code 1892, ? 2399.
    Under code 1892, § 2399, so providing, a justice of tbe peace must bold bis court within tbe district for wbicb be was elected. He is without jurisdiction to bold it elsewhere.
    2. Criminal Law. Pei-jury.
    
    Perjury cannot be predicated of false swearing before a justice of tbe peace assuming to bold his court without bis district. •
    3. Criminal Pbocedube. Motion to excVude evidence.
    
    A motion by a defendant to exclude all tbe evidence, and for a peremptory instruction in bis' favor, cannot rightfully be made before all the evidence for the prosecution has been beard, unless the state admits the absolute truth of the facts upon which the motion is based.
    Fbom the circuit court, second district, of Yalobusha county.
    JioN. Z. M. Stephens., Judge.
    This case was a prosecution of appellee, Tate, defendant in the court below, for perjury. At the conclusion of the testimony of the first witness for the state, the defendant moved the court to exclude the evidence and to instruct the jury, peremptorily, to find defendant not guilty. This motion the court below sustained. A judgment for defendant was rendered and the state appealed to the supreme court. The record does not affirmatively show it, but presumably the prosecuting attorney admitted as a fact that the justice of the peace before whom the indictment charged the false swearing to have been made was assuming to hold his court without his district. The facts are stated in the opinion of the court.
    Monroe McClurg, attorney-general, for appellant.
    It is shown by the record that it was the custom of justice of the peace Goforth to hold his court out of his district, and that appellee himself, either in recognition of the custom or by an agreement with his adversary, had just tried a case before the same justice at the same place, and that in the particular trial in which he is accused of committing perjury, and to which trial he was a party defendant and represented by counsel, he not only failed to plead jurisdiction, or to appeal, but expressly agreed to the trial then and there by Justice Goforth.
    The justice had jurisdiction to render a valid judgment and that judgment is conclusive upon the appellee, and he cannot now make collateral attack upon the judgment itself or the proceedings that led up to it. Constitution 1890, §111; code 1892, §§ 2392, 2395: Cross v. Levy, 57 M.iss., 634; State v. Ilidley, 114 N. C., 827; Stale v. McCaffery, 75 llich., 115.
    Tate evidently won his case by his own testimony and got tbe full benefit of bis oath, and will not now be beard to question the jurisdiction.
    No counsel appeared in the 'supreme court for tbe appellee.
   Teeeai., J.,

delivered tbe opinion of tbe court.

Tate, tbe appellee, was indicted for perjury in tbe circuit court of Yalobusha county. Tbe perjury is charged to have been committed upon tbe trial of a civil cause before H. A. Goforth, a justice of tbe peace of district No. 2 of said county. Goforth was the only witness put upon tbe stand; be testified that he was elected a justice of tbe peace of district No. 2 of said county, and that the case of Wagner & Co. v. J. M. Tate was brought before him, in the trial of which case perjury is alleged to have been committed by Tate; but that be held bis court and tried said cause in district !No. 3 of said county. Other evidence was given by Goforth, but not enough to support a conviction of tbe defendant. Whereupon the defendant’s counsel moved the exclusion of all the evidence and for a peremptory instruction in favor of the defendant, which was done. In our opinion it wuuld have been proper for the court to have heard all the evidence in the case before forcing the state to rest the prosecution; for it might have been that the state could have offered stronger proof of the guilt of the defendant than the testimony given by Goforth, and it might have shown that the trial of the case was had in district No, 2, and not in district No. 3, as was supposed by Go-forth.

Jut if we are to understand the district attorney as consenting that the testimony of Goforth that the trial of the case of Wagner & Co. v. Tate was had in district No. 3, was in fact trie, then it would have been useless to have proceeded further.

Justice Goforth could hold his court only in district No. 2. the district of his election. 3iy § 2399, annotated code, a •iistice of the peace is required to hold his court in his district, and Goforth was without jurisdiction to try the case in district No. 3. The matter ivas jurisdictional and the action of Goforth was a nullity. Phillips v. Thrall, 26 Kan., 780; Durfee v. Grinnell, 69 Ill., 371.  