The opinion
Whether or not a prosecution can be maintained under the record in this case, correctly stated in Presiding Judge Prendergast's opinion, was a question of no little difficulty to the writer. If the jurisdiction of the County Court had not attached, of course the proceedings would be void, and if void, no prosecution for perjury would lie. If there had been neither a complaint nor information, to our minds there would be no question that appellant's contention that the jurisdiction of the County Court had not been invoked would be sound. But in this case, on appeal from Justice Court, the complaint was quashed, and a new complaint filed. This new complaint was a necessary step to confer jurisdiction on the County Court, but when filed, and appellant appeared and plead thereto, the County Court had jurisdiction to make any and all necessary orders authorized by law. Had appellant moved to quash the complaint (before the filing of the information) the County Court could have entertained jurisdiction and acted thereon, and we are of the opinion that by the steps taken jurisdiction of the case was conferred on the County Court. The first step required by law to be taken in all cases in County Court had been taken, and appellant appeared and answered thereto. It is true no legal conviction could be had until an information had been filed based on the complaint, because the law requires an information to be filed, but the fact that no information had been filed did not deprive the County Court of the jurisdiction of the cause conferred by the filing of the complaint. In the recent case of Lee Etheridge, out of which this prosecution for perjury grew, the cause was reversed and remanded because no information had been filed, but the county attorney can still file an information on the original complaint, and proceed with the prosecution of the case. If the jurisdiction of the County Court had not been invoked by the filing of the complaint, this court would have reversed and dismissed, because it is only where the trial court has jurisdiction of the matter that the cause is remanded to that court. The jurisdiction of the County Court having been invoked by the filing of the complaint, and appellant appearing and answering thereto, the proceedings had thereafter were not void but only erroneous, or voidable at the instance of appellant. If appellant had been acquitted on that trial, the county attorney could not legally have instituted another prosecution — a plea of former acquittal would have been good. Not only do the authorities in this State, cited by Presiding Judge Prendergast, so hold, but in an exhaustive opinion rendered by the Supreme Court of the United States in the case of Ball v. United States, 163 U.S. 662 , it is so held. In that case the facts show three men were indicted for murder, and were tried; one, Millard F. Ball, was acquitted. J.C. Ball and Boutwell were found guilty. J.C. Ball and Boutwell appealed the *Page 208
case, and it was reversed and dismissed on account of defect in the indictment. They were all three reindicted and again tried, Millard F. Ball pleading former acquittal, which had been had on a defective indictment. The trial court overruled the plea, but the United States Supreme Court holds the plea good, and reverses the case as to Millard F. Ball, and the reasoning therein to us appears sound. It says: "The Constitution of the United States, in the Fifth Amendment, declares: `Nor shall any person be subject to be twice put in jeopardy of life or limb.' The prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial. An acquittal before a court having no jurisdiction is, of course, like all the proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense. Com. v. Peters, 12 Met., 387 ; 2 Hawk. P.C., chap. 35, sec. 3; 1 Bishop, Crim. Law, sec. 1028. But although the indictment was fatally defective, yet, if the court had jurisdiction of the cause and of the party, its judgment is not void, but only voidable by writ of error; and, until so avoided, can not be collaterally impeached. If the judgment is upon a verdict of guilty, and unreserved, it stands good, and warrants the punishment of the defendant accordingly, and he could not be discharged by writ of habeas corpus. Ex parte Parks, 93 U.S. 18 (23:787). If the judgment is upon an acquittal, the defendant, indeed, will not seek to have it reversed, and the government can not. United States v. Sanges, 144 U.S. 310 (36:446)."
Appellant answered ready for trial and voluntarily took the stand and testified in the hope he would secure an acquittal, and if he had done so it would have been final. If he had been convicted and did not appeal therefrom, it would have been final. He and he alone could attack the judgment, whatever it might have been. He took his chances on securing an acquittal, and if he had been acquitted, of course no appeal could have been had, and the judgment would have been final; and in that state of case, if someone offer than appellant had been prosecuted for perjury on account of testimony given on that trial, would it be held that such person would be allowed to go behind the judgment, collaterally attack it, and show that it had been erroneously obtained? We think not. If not, then such judgment would not be void, but voidable only, and if only erroneous proceedings were had (but not void) an indictment for perjury will lie, and we agree to the affirmance of the case.