Browsky v. Perdue
| Citation | 143 S.E. 304,105 W.Va. 527 |
| Decision Date | 08 May 1928 |
| Docket Number | 5924. |
| Parties | BROWSKY v. PERDUE, Jailor. |
| Court | West Virginia Supreme Court |
Submitted May 1, 1928.
Syllabus by the Court.
The allegation of an offense in a warrant is sufficient, if it contains a substantial statement showing the commission of the particular offense charged.
Ordinarily an appeal does not lie in a criminal case from a judgment of conviction rendered upon a plea of guilty.
In a criminal case the court may permit the plea of guilty to be withdrawn and another plea to be entered in its place in the exercise of a sound discretion.
Error to Circuit Court, Raleigh County.
Proceeding by Mike Browsky for habeas corpus to be directed to John Perdue, Jailor. The writ was discharged, and the prisoner remanded, and he brings error. Affirmed.
C. R Harless and Carl C. Sanders, both of Beckley, for plaintiff in error.
Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for defendant in error.
Mike Browsky complains of the action of the circuit court of Raleigh county in discharging his writ of habeas corpus and in refusing him an appeal from a judgment rendered by a justice of said county.
Browsky was arraigned before W. H. Ford, justice, on the 15th day of November, 1926, charged with a violation of the road law, to wit, unlawfully operating an automobile on the public roads of Raleigh county while intoxicated. He pleaded guilty, and upon request, the justice granted him two days in which to arrange his business affairs before passing sentence. On the 17th Browsky appeared with his attorney, and secured a continuance until the 30th day of December, giving bond for his appearance. On the latter date he again appeared and asked permission to withdraw his plea of guilty and to be afforded a trial, which request was refused, and sentence pronounced. An application for an appeal to the criminal court of the county was made at this time, and refused by said justice, and Browsky was committed to the custody of the jailor.
A writ of habeas corpus was sued out against the jailor, and, on a hearing, the circuit court discharged the writ and remanded the prisoner. A motion was then made to consider the petition for habeas corpus as a petition for an appeal, and the return of the jailor as an answer thereto, which motion was allowed by the court. Respondent demurred to this petition, but the demurrer was overruled, and the court, after hearing the argument of counsel on said petition, the answer, and the statement and evidence of the justice, refused the appeal.
The warrant, though a little crudely drawn, in our opinion sufficiently charges the petitioner with the statutory offense of unlawfully operating an automobile on the public roads of said county while intoxicated (section 88, c. 43, Code) and satisfies the requirements of section 223, c. 50, Code, as to substance. Being a valid warrant, the imprisonment ordered thereunder by the justice does not amount to illegal imprisonment, so as to warrant discharge on...
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