Austin v. Knight
| Decision Date | 24 March 1942 |
| Docket Number | 9341. |
| Citation | 20 S.E.2d 897,124 W.Va. 189 |
| Parties | AUSTIN v. KNIGHT et al. |
| Court | West Virginia Supreme Court |
W H. Daniel and William C. Graham, both of Huntington, for petitioner.
W K. Cowden, Jr., of Huntington, for respondents.
Petitioner E. F. Austin, invoking the original jurisdiction of this court to a writ of habeas corpus ad subjiciendum, Code 51-1-3, seeks relief from imprisonment imposed upon him by E E. Knight, justice of the peace of Gideon District, Cabell County.
Petitioner is confined in the Cabell County jail, of which respondent Harvey C. Taylor, sheriff of said county, is the jailer. He alleges that his detention is illegal for the following reasons: (1) He was tried by respondent Knight in the county jail, which is located in Kyle District; (2) he was arraigned and tried in the police court of the City of Huntington and therefore his commitment to jail by the justice constitutes double jeopardy; (3) the justice of the peace had no proper jurisdiction of his person because the trial and sentence by the justice were without proper warrant; and (4) the justice of the peace was disqualified to try petitioner because he had a monetary interest in the outcome of the trial.
The case was heard on petition, the answer and return of the respondents Knight and Taylor, and testimony bearing on the issues, a transcript of which was exhibited to this Court.
Petitioner was arrested February 21, 1942, by city police officers for being intoxicated in a public place in the City of Huntington, and confined in the city jail. Three days later he was arraigned before John G. Hudson, police judge of the City of Huntington. There is a variance in the testimony as to what then occurred. According to petitioner, he was tried and fined in the police court. This is denied by the police judge, who testified that petitioner came to his desk and told him that he lived in Ashland and that he had or could get a job there, whereupon petitioner was told that his case would be transferred to a justice of the peace who would be just as lenient as he (Hudson) would be. The docket of the police court shows no plea or sentence as to petitioner. It simply carries the notation that he was transferred to the State, and in the record we find a paper headed "Transfers to State Courts", purporting to have been signed by Hudson as police judge, and upon which appear fifteen names, including that of petitioner.
According to respondent Knight, petitioner, together with fourteen others similarly confined, was delivered into his custody. The prisoners were then taken from the police court room to the corridor of the city hall, and there asked if they desired to plead guilty; if not a hearing would be accorded. None indicating a desire for hearing, he thereupon sentenced each of the prisoners while they were in the city hall. There is testimony by some of the witnesses who, like petitioner, were transferred to respondent Knight for trial, that their cases were transferred only upon the police judge's ascertaining that they could not pay the fine and costs assessed by him as police judge, and that the sentences
were imposed by respondent Knight in the county jail in Kyle District and not in the city hall in Gideon District. Were this true, the justice acted outside of his district and would be without jurisdiction, and petitioner's detention would be unlawful. State v. Hines, 100 W.Va. 505, 130 S.E. 669; Johnston v. Hunter, 50 W.Va. 52, 40 S.E. 448; Stanton-Belment Co. v. Case, 47 W.Va. 779, 35 S.E. 851. Knight is corroborated partly by the police judge who stated that the justice called the prisoners out, had them in the corridor of the city hall, and that when he (Hudson) passed through the corridor, he heard the justice calling the names of the prisoners and taking their pleas. Hudson left before the taking of the pleas was completed, and does not recall whether he heard petitioner plead. It must be remembered that so far as the record is concerned, Hudson, after he caused the prisoners to be turned over to Knight, had no interest, official or otherwise, in the controversy in this record. Moreover, Knight is corroborated by the witness Rollyson, who testified that sentences were imposed before "we got over there", meaning the county jail. Hence we believe that the testimony of the police judge and Rollyson sufficiently corroborates the contention of Knight so as not to justify a conclusion that sentence was imposed upon petitioner elsewhere than in the city jail.
The second ground upon which petitioner relies for his release from imprisonment is that when he was arraigned and tried in the police court, his commitment to the county jail constituted double jeopardy. We have already detailed the conflict of testimony between the police judge and the petitioner. It suffices to say that even though the factual situation were as petitioner states, a conviction in the police court would not necessarily have been a bar to prosecution by the State. Whether the offense charged in the trial before the city officer is an offense under an ordinance of the City of Huntington identical to an offense under Code, 60-6-9, so that Code, 50-18-1, is applicable, we can not say as the ordinances of the city are not in this record. But see State v. Mills, 108 W.Va. 31, 150 S.E. 142, in which this Court held that a conviction of assault and battery under a city ordinance is not a bar to prosecution for the same offense under the statute, for the reason that the two...
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