Brown v. Epps

• Decision Date: 14 February 1895
• Citation: 21 S.E. 119,91 Va. 726
• Parties: BROWN. v. EPPS, Serjeant1
• Court: Virginia Supreme Court

21 S.E. 119

91 Va. 726

BROWN.

v.EPPS, Serjeant¹

Supreme Court of Appeals of Virginia.

Feb. 14, 1895.

Constitutional Law—Trial by Jury—Jurisdiction op Justice op the Peace.

Code 1887, § 4106, as amended by Acts Assem. 1893-94, p. 430, provided that justices of the peace shall have concurrent jurisdiction with the county and corporation courts in petit larceny and other misdemeanors whenever the accused elects to be tried by said justice, and is not in conflict with Const, art. 1, § 10, which provides "that in all capital or criminal prosecution a man hath a right to * * * a speedy trial by an impartial jury, " as provision is made for a trial by jury on appeal to a higher court in case of conviction before the justice. Reversing Miller v. Com., 14 S. E. 161, 342, 979, 88 Va. 618.

John Brown, being detained by the Serjeant of Richmond under a mittimus from a justice of the peace, applied to the supreme court of appeals for a habeas corpus. Writ refused.

Coalter & Wise and Chas. W. Dunston, for plaintiff.

R. Taylor Scott, Atty. Gen., for respondent

KEITH, P. John Brown filed a petition complaining that he was unlawfully detained in custody by Charles H. Epps, Serjeant of the city of Richmond, and praying for a writ of habeas corpus from this court, which was awarded. The Serjeant answers that he holds Brown by virtue of a mittimus from J. J. Crutchfield, police justice for the city of Richmond, which is appended to the return, and made a part thereof. Brown, by counsel, demurs to this return as insufficient in law, and for cause of demurrer claims that section 4106 of the Code of Virginia of 1887 (as amended by Acts Leg. 1893-94, p. 430) and sections 4107 and 4108 of the Code are null and void, as being repugnant to section 10, of article 1 of the constitution of Virginia, which declares "that in all capital or criminal prosecution a man hath a right to demand the cause and nature of his accusation, to be confronted with his accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty, except by the law of the land or the judgment of his peers." The case of Miller v. Com., reported in 88 Va. 618, 14 S. E. 161, 342, 979, was decided upon the law as set out in sections 4100-4108 of the Code, and the amend ment to section 4106 found In Acts Assem. 1893-94, was designed to cure the defect which this court declared to exist in that section on account of its repugnancy to the constitutional provision just quoted. The amendment consists in inserting after the words "conservators of the peace" the words, "whenever the person charged with any of the offences hereinafter mentioned elects to be tried by such justice, " so that the act now reads: "The several police justices and justices of the peace of this commonwealth, in addition to the jurisdiction exercised by them as conservators of the peace, whenever any of the persons hereinafter mentioned elects to be tried by such justice, shall have concurrent jurisdiction with the county and corporation courts of the state of all cases of assault and battery not felonies, petit larceny, " etc. Counsel for the petitioner contends that this amendment does not cure the vice, and therefore it will be proper to examine first into the true construction of the statute prior to its amendment, and then to consider the effect of the v, ords introduced by the legislature in the amendment referred to.

Cases involving the Jurisdiction of justices of the peace under this and similar statutes have been frequently before this court, and in every instance, save in the case of Miller v. Com., 88 Va. 618, 14 S. E. 161, 342, 979, the validity of the judgment based on the statute has been upheld. See Thomas' Case, 22 Grat. 912; Read's Case, 24 Grat. 618; Wolverton v. Com., 75 Va. 910; and Harrison v. Com., 81 Va. 491. Inasmuch, however, as it does not appear that the constitutional question here under consideration was presented to the court in any of those cases, it is contended that they are not authorities binding upon us, and it is conceded that their weight as authority is impaired for the reason stated. It does appear, however, that the question of jurisdiction was considered by the court, and, indeed, underlies the exercise of jurisdiction by all courts in all cases, whether specifically presented or not; so that, where it appears that courts of all grades in the state from justices of the peace to this court have gone on uninterruptedly for many years to exercise jurisdiction under a statute, and that during all that time there has been no doubt entertained nor question raised as to the constitutionality of the law, when all this has been done in the presence of an able and inquisitive bar, a strong presumption is raised that the attack has not been made upon the constitutionality of the law, because, in the judgment of the courts and of the profession, no such ground of objection existed. The same class of cases has been considered in our sister states, notably in the cases of Jones v. Robbins, 8 Gray, 329; Shafer v. Mumma, 17 Md. 331; Beers v. Beers, 4 Conn. 535; Moundsville v. Fountain, 27 W. Va. 205; City of Emporia v. Volmer, 12 Kan. 622; Wong v. City of Astoria. 13 Or. 538; Moore v. State, 22 Tex. App. 117; Byers v. Com., 42 Pa. St. 89; McGinnis v. State, 9 Humph. 43. The states whose decisions are here quoted base their jurisprudence upon the common law derived from the same fountains from which ours flows, and their decisions, which are evidence of the common law among them, are strongly persuasive, at least, of the common law as it exists here. Contemplating for a moment the situation in the colonies at the time of the Revolution, we find that the evils complained of by them were the same, the means taken to redress them and guard against their recurrence were identical; therefore their adjudications are entitled to great influence in the construction of similar statutes in our own states. In some of the cases cited prosecutions were for petit larceny, in some for keeping houses of ill fame, and in others for less serious violations of the law. The case from 22 Tex. App. is a very curious one in this: that the court reversed the judgment of the lower court because it had compelled the accused to go before a jury when the statute authorized a trial by a court without a jury, and the prisoner had demanded to be tried in accordance with the statute. The Texas constitution is almost identical in its terms with ours. The offense charged there was an aggravated assault and battery and the court was unanimous. The principle of all these cases is that a statute which confers jurisdiction upon a justice of the peace to try such offenses as are embraced in section 4106 of the Code are constitutional, provided, by a simple procedure, a trial by a jury can be had on appeal to a higher court. 3 Am. & Eng. Enc. Law, p. 731, and 4 Am. & Eng. Enc. Law, pp. 812, 813. The law is so stated by Bish. Cr. Proc. § 893; Sedgw. St. Const Law, c. 497. In the case under consideration, not only is the procedure simple, but it is an absolutely free and unfettered right of appeal. The prisoner is brought before the justice. The warrant makes known to him the cause and nature of the accusation against him. He is confronted with accusers and witnesses. He is permitted to call for evidence in his favor. He is not compelled to give evidence against himself, and a judgment is rendered against him. If he feels that that judgment is just, he submits to it; if aggrieved by it, he appeals; and by the assertion of his right of appeal the whole force and effect of the judgment is destroyed. That which, by his assent, implied from ills silence, would have been a final judgment, pleadable in bar to any future prosecution for the same offense, has, by his act, become of no effect, and he stands as free as before his arrest, subject only to the requirement that he must give bond for his appearance in the appellate court. Now, what is the substance of all this? Does not the determination of the defendant—in which determination he is an absolutely free agent—wholly set at naught the judgment just rendered against him, and transfer the controversy to another forum, and convert the proceedings before the justice into a proceeding preliminary to a trial which is thereafter to take place in the appellate court, and divest it of all similitude to a final trial? It seems to me that, looking to the reality, and not the form, of things, to their substance, and not to the names by which they are called, that is the conclusion to which we are inexorably driven. Follow the accused one step further, when in obedience to his recognizance, he presents himself before the trial court, under section 4108, and there we find that the language of the statute is, "The accused shall be entitled to a trial by a jury in the same manner as if he had been indicted for the offence in said court;" that is to say, he has the same guaranties thrown around him to secure to him a fair trial by an impartial jury as is given to all other persons accused of crime, and he stands before that jury innocent until his guilt is proved. But it is said that the prisoner is entitled to a speedy trial, and in the Miller Case, so often cited from 88 Va. and 14 S. E., the word "speedy" would seem to be considered as equivalent to "immediate, " which would have a tendency to limit the discretion of the legislature in prescribing the stages through which a prosecution should pass from the arrest to the conviction of the prisoner. I do not understand the word to have been so used in the constitutional provision which is now being inquired into.

Up to a recent date the procedure in the enforcement of criminal law, beginning with the arrest of the accused, and...