Collins v. City Of Radford

• Decision Date: 21 September 1922
• Citation: 113 S.E. 735
• Parties: COLLINS. v. CITY OF RADFORD.
• Court: Virginia Supreme Court

113 S.E. 735

COLLINS.

v.CITY OF RADFORD.

Supreme Court of Appeals of Virginia.

Sept. 21, 1922.

Error to Corporation Court of Radford.

Albert L. Collins was convicted of an offense, and he brings error. Affirmed.

V. M. Sowder, of Christiansburg, and R. L, Jordan, of Radford, for plaintiff in error.

H. C. Tyler, of East Radford, for defendant in error.

KELLY, P. Upon an appeal from a sentence of conviction by the civil and police justice of the city of Radford for a violation of a city ordinance, the defendant, Albert L. Collins, was tried by a jury in the corporation court of said city, found guilty, and sentenced to the payment of a fine of $100 and imprisonment in jail for six months. To that sentence this writ of error was awarded.

1. The record shows that the defendant made a motion in the corporation court "to quash the warrant for error apparent upon its face, but assigned no other ground therefor." The obvious meaning of this language is that the motion was general, andpointed out no specific objections to the form of the warrant. The motion was overruled, and this action of the court is assigned as error.

The warrant was as follows:

"Virginia, City of Radford, to wit:

"Whereas, R. 'H. Moore has this day made complaint and information on oath before me, John H. Stump, civil and police justice of said city, that Albert L. Collins did, on the —— day of January, 1921, and within 12 months last past, and within the city limits, unlawfully transport, sell, keep, or store for sale ardent spirits; the said Collins having previously, to wit, on the 25th day of December, 1920, been convicted of storing and keeping for sale ardent spirits in the said civil and police justice's court, and fined $400 and costs, and sentenced to serve 60 days in jail, which jail sentence was suspended by the said civil and police justice during the good behavior of the said Albert L. Collins.

"And the said Albert L. Collins, on the—— day of January, 1921, and within 12 months last past, within said city limits, did attempt to transfer, sell, keep, or store for sale ardent spirits.

"These are, therefore, in the name of the commonwealth of Virginia, to command you that you forthwith apprehend and bring before me the body of the said Albert L. Collins to answer the said complaint and information, and to he further dealt with according to law. And I further command you that you summon R. H. Moore and Herbert Gibson as witnesses to testify against the said Albert L. Collins, in behalf of the commonwealth.

"Given under my hand and seal this 4th day of February, 1921. John H. Stump, "Civil and Police Justice. [L. S.]"

We do not see anything on the face of this warrant which can be regarded as seriously irregular or defective. It did not specifically charge a violation of a city ordinance, and it concluded in the name of the commonwealth, and not in the name of the city. But it did show that it emanated in the city of Radford, for an offense against the prohibition law committed within the city limits, and that it was issued and was to be tried by the police justice of that city, whose jurisdiction as to such offenses was expressly confined by law to infractions of city ordinances. See act creating his office, approved March 16, 1920 (Acts 1920, p. 275), and section 24, Prohibition Law (Acts 1918, p. 598). There is no law prescribing any special form for the conclusion of a warrant, and the conclusion of this one in the name of the commonwealth, even if irregular, was neither misleading nor inconsistent.

"In the last analysis the municipality is, after all, but a mere arm or agency of the state, and its power to punish is' by direct delegation from the state." Lile's Notes on Municipal Corporations, § 138.

The case having originated in a municipal court of exclusive original jurisdic tion, it was not necessary in that court to plead or prove the ordinance. Lile's Notes on Municipal Corporations (1922) § 138a; 1 Dillon's Mun. Corp. § 413; 28 Cyc. 394; 17 A. & E. Ency. Law (2 Ed.) 937; 2 McQuillin on Municipal Corporations, § 849; 15 R. C. L. p. 1077, § 16. There is practically no conflict of authority on this proposition.

Whether the same rule applies on appeals from municipal courts to state courts, where the trial is to be had de novo, as with us, is a question upon which there is a diversity of judicial decision. 15 R. C. L. p. 1078; 17 Am. & Eng. Ency. L.' (2d Ed.) 938; 2 McQuillin, Mun. Corp. § 861; 16 Cyc. S99. But the better considered view is, in our opinion, that in such cases the state courts hold the same relationship to the ordinances as the municipal courts. The former are, in that respect, pro hac vice, tbe latter., 2 McQuillin on Mun. Corp. § 861; Moundsville v. Velton, 35 W. Va. 217, 13 S. E. 373; Portland v. Yick, 44 Or. 439, 75 Pac. 706, 102 Am. St. Rep. 633; Steiner v. State, 78 Neb. 147, 110 N. W. 723; Solomon v: Hughes, 24 Kan. 211; Downing v. Miltonvale, 36 Kan. 740, 14 Pac. 281; Milbank v. Cronlokken, 29 S. D. 46, 135 N. W. 711, Ann. Cas. 1914C, 1231; Galen Hall Co. v. Atlantic City, 76 N. J. Law, 20, 68 Atl. 1092; Sidelsky v. Atlantic City, 84 N. J. Law, 198, 86 Atl. 531; Buffalo v. Stevenson, 145 App. Div. 117, 129 N. Y. Supp. 125.

Both the police justice and the corporation court of the city of Radford were bound in this case to take judicial notice of the existence and effect of the ordinance; and there was no defect in the warrant by reason of its failure to allege the same.

We have adverted to the failure of the warrant to allege the ordinance, not because counsel have in any way relied upon or referred thereto, but because we have thought it well to express our views upon the question. It is involved, though not adequately raised, in two other cases decided by us at this term, to wit, Wamplers v. Corporation of Norton (Va.) 113 S. E. 733, and Spradlin v. City of Roanoke (Va.) 113 S. E. 732. The question is quite likely to arise at any time in the multitude of similar prosecutions which are now of almost daily occurrence, and it is not, so far as we know, settled by any other Virginia decision.

Furthermore, it ought to be, observed in this connection that on the appeal to the corporation court the trial was expressly required to be conducted without formal pleadings (Code, § 4990); and the fullest provision is made for all amendments of the original warrant "in any respect in which it appears to be defective." Code, § 4989. Under the broad terms of the section last cited, if there had been, as there clearly was not, any substantial reason to suppose that the accused did not know from the warrant whathe was charged with, the court could even have gone to the extent of discarding entirely the original warrant, issuing a new one for the offense, and proceeding to trial on that. The provisions of the statute are intended to give the court a free hand in conducting the trial on appeal in such way as to guarantee to the accused every substantial right, on the one hand, and, on the other, to cut off frivolous and purely formal objections. See Harding v. Commonwealth, 105 Va. 858, 52 S. E. 832; Flint v. Commonwealth, 114 Va. 820, 76 S. E. 308; Robinson v. Commonwealth, 118 Va. 7S5, 87 S. E. 553; Harley v. Commonwealth, 131 Va. ——, 108 S. E. 648.

In Tones v. Commonwealth, 100 Va. 842, 853, 41 S. E. 951, it was announced as the settled practice of this court to give the accused in a criminal prosecution the benefit of his demurrer to the indictment, or his motion to quash the writ of venire facias for error apparent on its face, although the special grounds of demurrer or the motion to quash were not pointed out. Whether, under our present statutory provisions regulating procedure in felony cases, or under formal indictments, we would follow that rule is a question which we need not now decide, because it is certain that a different rule prevails in misdemeanor cases originating before a justice of the peace. Harding's Case, Flint's Case, Robinson's Case, and Harley's Case, supra. A general motion to quash a warrant on appeal, which points out no specific objections, cannot, under the terms of our statute as interpreted and applied in the decisions above cited, avail after verdict as against any defect in form unless it appears from the record of the trial that the accused was or could have been prejudiced thereby. The dockets of the trial courts, as is only too well known, are crowded with criminal cases, many of them appeals from sentences imposed by magistrates and police justices. The statutes to which we have referred were intended to facilitate the prompt trial of cases—an end promotive of real justice to all parties—and we wish to make clear our purpose to further, as far as possible, with due regard for substantial rights, that increasingly important policy. No backward step in this respect is to be considered.

If it be suggested that the defendant could not know from this warrant whether he was charged with a municipal or a state offense, a sufficient answer is that the police justice had no jurisdiction as to violations of the prohibition law except in cases arising under ordinances of the city; that he "called upon the plaintiff for a bill of particulars, " and got it before the trial, which showed that "the City of Radford" relied on "the charge of transporting ardent spirits, " and "attempting to transport ardent spirits" and that in his petition to this court for the writ of error he complains of a judgment rendered against him "upon the trial of a warrant for a violation of the city ordinance of the city of Radford."

As stated before, it does not appear that any reasons whatever were assigned in the lower court for the motion to quash the warrant except unnamed "errors apparent on its face." We shall now proceed to consider the only grounds which are, under this general objection, relied on or mentioned in the assignments of error.

It will be observed that the warrant contained two counts. The first...