
    STATE OF MARYLAND, ex rel. BAYNARD WILSON, v. OLIN B. STAFFORD, Justice of the Peace.
    [No. 79,
    October Term, 1930.]
    
      
      Decided January 22nd, 1931.
    
    The cause was argued before Bond, C. J., Pattison, Urnbr, Adkins, Obetjtt, Parke, and Sloan, JJ.
    
      G. L. Pendleton, for the appellant.
    
      William L. Mcurbury, Jr., Assistant Attorney General, with whom was Stephen P. Collins, State’s Attorney for Kent County, on the brief, for the appellee.
   Parke, J.,

delivered the opinion of the Court.

On July 11th, 1930, Baynard Wilson filed in the Circuit Court for Kent County a petition for a writ of certiorari to be issued, directing that Olin B. Stafford, a justice of the peace of that county, produce his record of the criminal prosecution and judgment against the petitioner in June, 1930. The petition embodied the docket entries, which, omitting the titling, were as follows:

“Before Olin B. Stafford, Justice of the Peace, upon oath and aformation rec’d, J. Thomas Uadaway, who charges Baynard Wilson-with on the 9th day of April, 1930, in the 3rd Election District of Kent County, d. with assault and battery on Roy Silcox, contrary to law. Trial held June 4, 1930. Plead Guilty. Sentenced to Maryland House of Correction for fSTine Months from this date, June 4th, 1930. As witness my hand and seal this June 4, 1930.
“Olin B. Stafford, J. P. (Seal)
“Commitme issued June 12, 1930. Appeal noted to October Court, 1930, by G. L. Pendleton, Att. Bail, $500.
“Olin B. Stafford, J. P.
“I hereby certify that the above is a true copy as taken from my Docket.
“Olin B. Stafford’, J. P.”

The petition is quite crudely and inartificially drawn, and the only allegation which need be stated is that the docket entries do not affirmatively disclose that the traverser was informed of his right to trial by jury and elected to be tried before the justice of the peace. Upon this verified petition, the court directed the writ to issue and set the matter for hearing on a named hour and day. There was neither return nor answer by the magistrate, and on the day set for the hearing the respondent made a motion short to amend the docket entries, which was followed by a motion on the part of the respondent to quash the writ; and then the petitioner moved short to quash the proceedings before the justice of the peace. A hearing was had and the court overruled the two motions, which were not in writing and present no question for review; and granted the respondent’s motion in writing to quash the writ of certiorari. It was from the order quashing the writ that this appeal was taken.

When the prisoner was brought before the justice of the peace charged with an assault and battery, the justice had no jurisdiction to hear, try, and determine the case unless “the accused, when brought before any such justice, on being informed by him of his right to trial by jury, freely elects to be tried before such justice.” Baum v. Warden of Jail, 110 Md. 579, 583-586, 73 A. 294; Danner v. State, 89 Md. 220, 228, 42 A. 965. Code, art. 52, sec. 12. The jurisdictional fact that the traverser was informed of his right to a trial by jury and his free election to be tried before the justice must affirmatively appear in the record of the proceedings. Fitzwater v. Youghiogheny, etc. Corp., 149 Md. 461, 470, 131 A. 776; Smith v. Goldsborough, 80 Md. 49, 59, 30 A. 574; Cumberland Valley R. Co. v. Martin, 100 Md. 165, 166, 59 A. 714; et infra.

The rule is thus stated for the court by Judge Offutt in Kartman v. Miliman, 144 Md. 502, 505-506, 125 A. 170, 171: “In the case of inferior courts sitting in the exercise of a special and limited jurisdiction, such as that exercised by magistrates under the laws of this state, it is well settled that There must be affirmative proof in support of the regularity of the proceedings. It is said that “no principle of law is more evident than that, when the tribunal is of a limited jurisdiction, or the proceedings are particularly described by a statute made on the subject, that course of procedure, so described, must, on the face of the record, appear to have been, if not literally, at least substantially, complied with, or the case must by the proceedings disclose itself to-be within the limited jurisdiction.” Shivers v. Wilson, 5 Har. & J. 132; Owings v. Worthington, 10 G. &. J. 293’; Fahey v. Mottu, 67 Md. 250, 10 A. 68.” Dorsey v. Dorsey, 28 Md. 388, 394; Wickes’ Lessee v. Caulk, 5 H. & J. 36, 42; Boarman v. Patterson, 1 Gill 372, 381.

The petition alleges that the justice of- the peace had no jurisdiction, because he had failed to proceed in accordance with the provisions of the statute, and the entries of the proceedings before the justice of the peace, which are incorporated in full in the petition, show a failure on the part of the magistrate to inform the accused of his right to trial by jury andi an election to be tried before the justice of the peace. At the hearing no amendment was made of these entries, nor any testimony offered, so the record wholly fails to disclose that the prisoner was informed of this right and thereafter made his election to be tried by the magistrate. The absence of a compliance with this indispensable prerequisite to the jurisdiction of the justice of the peace to prQceed was, therefore, manifest by the record, and, the want of jurisdiction so appearing on the face of the proceedings, whatever was thereafter done was com to non judice and void, whether it was a plea of guilty, and judgment, or a trial followed by a verdict and judgment. Baum v. Warden of Jail, 110 Md. 579, 583-586, 73 A. 294; Danner v. State, 89 Md. 220, 228, 229, 42 A. 965; Green v. State, 113 Md. 451, 455-458, 77 A. 677; Kane v. State, 70 Md. 546-553, 17 A. 557; State v. Ward, 95 Md. 118, 123, 51 A. 848; Fahey v. Mottu, 67 Md. 250, 255, 10 A. 68.

A writ of certiorari is available to test the jurisdiction of the inferior tribunal, and so, when the court had directed the writ to issue in the cause and proceeded to a hearing on the motion of the respondent to quash the writ, the proceedings then at bar did not disclose the facts which were essential to the jurisdiction of the justice of the peace, an inferior tribunal, and the trial court should not have granted the motion quashing the writ. Weed v. Lewis, 80 Md. 126, 129, 30 A. 610; Riggs v. Green, 118 Md. 218, 225, 84 A. 343; Kane v. State, 70 Md. 546, 552, 17 A. 557. If, upon answer or other procedure, it should subsequently be found that the allegations of the petition are untrue and the docket entries of the magistrate incomplete, and that, as a matter of fact, the accused was duly advised of his right to trial by jury, and freely elected to proceed before the justice of the peace, a different situation would be presented for the circuit court’s appropriate action. Kane v. State, 70 Md. 546, 549, 552-553, 17 A. 557; Green v. State, 113 Md. 451, 458, 77 A. 677; Mottu v. Fahey, 78 Md. 389, 391, 392, 28 A. 387.

The defendant relies upon the argument that, because the docket entries may be inaccurate and the petition does not in direct form allege that the accused was not actually informed of his right to jury trial, and that he did not elect to be tried by the magistrate, and because, also, the statute permits the docket entries to be corrected by amendment on appeal, a writ of certiorari does not lie, but the only remedy available to the petitioner is an appeal to the circuit court from a judgment entered upon a plea of guilty. This argument must fail because it rests upon an assumption of tbe performance of certain official acts by tbe magistrate and an election made by tbe accused, 'which this court has held must affirmatively appear from tbe face of tbe proceedings. Supra. Again, if tbe facts were in accord with tbe gratuitous hypotheses involved in tbe argument, no appeal would be entertained, since there can be none from a judgment entered by a court of competent jurisdiction upon a voluntary plea of guilty by one apprised of bis rights and tbe nature of bis act. State v. Darling, 130 Md. 251, 254, 100 A. 91; Lowe v. State, 111 Md. 1, 73 A. 637.

Tbe defendant cites Crichton v. State, 115 Md. 423, 81 A. 36, in support of bis argument, and quotes at length from tbe decision. In that case a writ of certiorari was sought before tbe trial of tbe accused, who bad been arrested upon warrants charging him with various violations of tbe motor vehicle laws. Among tbe objections advanced in support of tbe theory that tbe justice of tbe peace, owho bad issued tbe writs, bad no jurisdiction, was that it did not affirmatively appear upon tbe face of the proceedings that be was “the nearest justice of tbe peace” to tbe point where tbe accused bad been taken in custody . Code, art. 56, sec. 204. In denying this point, tbe court, in a careful opinion by Judge Boyd, analyzed tbe statute, and, for reasons there assigned and which need not be here repeated, held in effect that tbe provision quoted was, by a reasonable construction of tbe statute; not mandatory, but that, by reason of its directory nature, tbe provision was in tbe nature of a right of removal by tbe accused, and so open to him at trial if the magistrate before whom be was taken was not in fact tbe nearest. Pages 430-432 of 115 Md., 81 A. 36. Tbe decision, moreover, dealt with tbe form of warrants, and not with any basic indispensable fact, without which there was no jurisdiction. Pages 432, 433 of 115 Md. 81 A. 36. The contention of tbe defendant would give an effect to tbe decision which was not intended, as is evident from Hendrick v. State, 115 Md. 552, 557-560, 81 A. 18, 20, which was decided on tbe same day by tbe same judges, with tbe addition of Burke, J., and which, also, was written by Judge Boyd. After remarking that, under our system it would be of little, if any use, for the Court of Appeals to have the power to issue writs in matters of original jurisdiction, Judge Boyd wrote for the court: “As we have already said, the question of jurisdiction of the circuit court and of the justices of the peace or other inferior tribunal can be tested by appeal from or writ of error to the circuit court, and, in addition to that, where the writ of certiorari is sued out of the circuit court to test the power and jurisdiction of the inferior tribunal to act at all in the matter, the circuit court acts in its ordinary common law capacity, and an appeal will lie to this court from its judgment (B. & H. Turnpike Co. v. N. C. R. R. Co., 15 Md. 193); and that, too, notwithstanding an appeal is given by the statute from the justice of the peace or other inferior tribunal to the circuit court (Rayner v. State, 52 Md. 368; 2 Poe on Pl. & Pr., sec. 723A).” See also Riggs v. Green, 118 Md. 218, 228, 84 A. 343; Brune on Motor Vehicle Law, sec. 110, pp. 173, 174; Baum v. Warden of Jail, 110 Md. 579, 73 A. 294; Gaither v Watkins, 66 Md. 576, 581, 8 A. 464.

The writ here having been sought to have decided the question of the power and jurisdiction of the magistrate to act, it follows from the views expressed that the writ should not have been quashed, and that the cause must be remanded for further proceedings.

Order of July 19th, 19S0, reversed, and cause remanded for further proceedings in conformity 'with this opinion., with costs of this appeal to the appellant.  