Cooper v. Town Of Appalachia

Citation134 S.E. 591
PartiesCOOPER. v. TOWN OF APPALACHIA.
Decision Date23 September 1926
CourtSupreme Court of Virginia

Error to Circuit Court, Wise County.

Application by one Cooper for a writ of mandamus against the town of Appalachia. The writ was refused, and the applicant brings error. Affirmed.

W. W. G. Dotson, of Wise, for plaintiff in error.

Morton & Parker, of Appalachia, for defendant in error.

BURKS, J. The town of Appalachia adopted the state Prohibition Law as far as applicable, as an ordinance of the town. Thereafter the plaintiff in error was arrested on a warrant issued by the mayor of said town, charging that the defendant "did unlawfully keep, store, sell, and expose for sale ardent spirits in violation of the ordinance of said town." The warrant was read to the defendant, and he "replied that he did not want any trial; that he was guilty and desired and * * * did enter a plea of guilty to the warrant with the charge aforesaid." Thereupon the mayor sentenced him to "six months in jail to work on the county road force, " and to pay a fine of $500 and thecosts. Three days thereafter the defendant applied to the said mayor for an appeal to the circuit court of Wise county, but he refused to grant it Three days thereafter he applied to the judge of the circuit court of Wise county for a writ of mandamus to compel the said mayor to grant him an appeal, but the judge refused to award said writ.

There are four assignments of error, none of which assails the validity of the statute or the power of the trial court, but we need only consider whether the petitioner was entitled to an appeal.

Section 35 of the prohibition statute (Acts 1924, c. 407, p. 593) grants the right to an appeal in the following language:

" * * * Mayors, police justices and others having jurisdiction for the trial of cases for the violation of the ordinances of the cities and towns shall have jurisdiction to try cases arising under ordinances passed by their respective cities and towns as hereinafter provided, with the right of appeal to the defendant to the court having jurisdiction to try such appeal."

But it is said that the accused is not entitled to an appeal because he pleaded guilty before the mayor, and such is the holding of some of the courts.

In Nicely v. Butcher, 81 W. Va. 247, 94 S. E. 147, it is said:

"Does an appeal lie to the judgment complained of? It purports to be rendered upon a plea of guilty, and ordinarily an appeal will not lie from a judgment of conviction in a criminal case rendered upon a confession of guilt. 3 C. J. 603; 2 R. C. L. 60. But before receiving a plea of guilty, the court should see that it is made by a person of competent intelligence, freely and voluntarily, and with a full understanding of its nature and effect, and of the facts on which it is founded. 2 R. C. L. 60; Lowe v. State, 111 Md. 1, 73 A. 637, 24 L. R. A. (N. S.), 439, 18 Ann. Cas. 744. It cannot be contended that these requirements were met in this instance, wherefore we do not think the right of appeal should be denied upon that ground."

In 12 Cyc. 333, it is said:

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