Kolvek v. Napple

Decision Date18 March 1975
Docket NumberNo. 13519,13519
Citation158 W.Va. 568,212 S.E.2d 614
CourtWest Virginia Supreme Court
PartiesJoseph KOLVEK v. Leonard L. NAPPLE, Sheriff, Marion County.

Syllabus by the Court

1. A proceeding under the 'peace bond' statute, Code, 62-10-2 and Code, 62-10-3, is in the nature of a criminal proceeding.

2. It is a denial of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States for an indigent to be incarcerated because he cannot furnish a $500 cash bond or a proper surety in a 'peace bond' proceeding.

3. The 'peace bond' required under Code, 62-10-3 is a recognizance and if an indigent is allowed to go on his own recognizance to keep the peace there is no denial of equal protection under the Constitution of the United States.

4. Under Code, 62-10-3 the person required to give a cognizance is not charged with a crime, but is only required to give a recognizance to keep the peace and refrain from violating the law. It is only where such person refuses to give a recognizance for such purpose that he can be incarcerated.

5. 'When the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, did any doubt must be resolved in favor of the constitutionality of the legislative enactment.' Point 3, syllabus, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178.

6. A statute may be valid on its face but unconstitutionally applied. The unconstitutional application of the statute may be prohibited and the statute allowed to stand.

David A. Glance, Fairmont, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., David P. Cleek, Asst. Atty. Gen., Charleston, for defendant in error.

BERRY, Justice:

This is an appeal by Joseph Kolvek, hereinafter referred to as the appellant, from a final judgment of the Circuit Court of Marion County entered September 9, 1974 wherein the circuit court denied the appellant's petition for a writ of habeas corpus. On September 30, 1974 this Court granted appellant's appeal and on January 21, 1975 the case was submitted for decision upon the arguments and briefs filed on behalf of the respective parties.

It appears from the undisputed facts in this case that on August 11, 1974 the appellant was arrested on a 'peace bond' warrant pursuant to West Virginia Code, 62-10-2. The warrant was issued by a magistrate of Marion County upon the representations alleged in a complaint filed by Andy Kolvek, the father of the appellant. The appellant's father alleged that the appellant had slapped him on a 'couple' of occasions, and on August 11, 1974 the appellant had threatened 'to get' him.

On August 11, 1974 the appellant was ordered by the magistrate to post a $500 'peace bond' pending a hearing on the warrant. The appellant was unable to post the $500 'peace bond' because he was an indigent and was consequently incarcerated in the Marion County jail pending a hearing. Counsel for the appellant was appointed and on August 23, 1974 a hearing was held on the 'peace bond' warrant before the magistrate. At the conclusion of the hearing the magistrate determined that there was 'good cause' to fear that the appellant intended to commit an offense against the complainant and accordingly the magistrate ordered the appellant to post a 'peace bond' of $500 to insure his good behavior for one calendar year. The appellant was unable to post the $500 bond and the magistrate ordered the appellant incarcerated in the Marion County jail for a period not to exceed one calendar year. On September 6, 1974 the appellant filed a petition for a writ of habeas corpus with the Circuit Court of Marion County, West Virginia. A hearing was held on September 9, 1974 and at the conclusion of the hearing the appellant's petition for a writ of habeas corpus was denied.

The appellant contends that his incarceration for a period of one year because of his financial inability to post a $500 'peace bond' violated the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. Appellant also contends that his arrest and subsequent incarceration under the 'peace bond' statute was founded upon proof of less than 'beyond a reasonable doubt', and therefore, he was denied due process of law. Appellant's third contention is that his incarceration amounted to cruel and unusual punishment which is prohibited by the Eighth Amendment to the Constitution of the United States.

The pertinent sections of the statute involved in the case at bar are Code, 62-10-2 and Code, 62-10-3. Code, 62-10-2 reads as follows:

If complaint be made to any justice, that there is good cause to fear that a person intends to commit an offense against the person or property of another, he shall examine the complainant on oath, and any witnesses who may be produced, reduce the complaint to writing, and cause it to be signed by the complainant. If it appear proper, such justice shall issue a warrant, reciting the complaint, and requiring the person complained of forthwith to be apprehended and brought before him or some other justice of the county.

Code, 62-10-3 reads as follows:

When such person appears, if the justice, on hearing the parties, consider that there is not good cause for the complaint, he shall discharge such person, and may give judgment in his favor and against the complainant for his costs. If he consider there is good cause therefor, he may require a recognizance of the person against whom it is, and give judgment against him for the costs of the prosecution, or any part thereof; and, unless such recognizance be given, he shall commit him to jail, by a warrant, stating the sum the time for and in which the recognizance is directed. The justice giving judgment under this section for costs may issue a writ of fieri facias thereon, if an appeal be not allowed; and proceedings shall be had thereupon, as provided by section eight ( § 50-18-8), article eighteen, chapter fifty of this Code for the collection of fines and costs in criminal cases by justices. A person from whom such recognizance is required may, on giving it, appeal to the circuit court of the county; and in such case the justice from whose judgment the appeal is taken shall recognize such of the witnesses as he may deem proper.

Code, 62-10-2 merely provides that if a complaint is made to a justice of the peace, or magistrate, and there is good cause shown that a person intends to commit an offense against a person or property of another a warrant shall be issued for such person to be brought before the justice or magistrate for a hearing. The requirement of 'good cause' shown in this section is the same as the requirement of probable cause for the issuance of a warrant in an ordinary criminal case. Code, 62-10-3 provides for a hearing and if good cause is shown for the complaint a recognizance may be required of the person against whom the warrant was issued, and unless the recognizance is given the person against whom the warrant was issued shall be committed to jail. It is only when the person against whom the warrant is issued refuses to give a recognizance that he may be placed in jail and be deprived of his liberty. The recognizance is merely conditioned upon such person keeping the peace, or refraining from committing an unlawful act.

It has been held by this Court that a proceeding under the statutes in question was in the nature of a criminal proceeding rather than a civil proceeding. State ex rel. Yost v. Scouszzio, 126 W.Va. 135, 27 S.E.2d 451 (1943). It was stated in the case of State v. Gillilan, 51 W.Va. 278, 41 S.E. 131 (1902) that when the 'peace bond' or recognizance is not given the consequence is imprisonment and that such action amounts to punishment.

It is quite true, as contended by the appellant, that if he was placed in jail because he was an indigent and could not furnish either a $500 cash bond or a proper surety while a person who is not an indigent can avoid being placed in jail by merely furnishing the bond required, he has been denied equal protection of the law in violation of the Fourteenth Amendment to the Constitution of the United...

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15 cases
  • State v. Anderson
    • United States
    • Connecticut Supreme Court
    • November 3, 2015
    ...substantive due process rights because statutory scheme failed to require proof of guilt beyond reasonable doubt); Kolvek v. Napple, 158 W.Va. 568, 575, 212 S.E.2d 614 (1975) (incarceration of indigent person based on his inability to post peace bond violated equal protection clause of four......
  • State v. Haught, 17941
    • United States
    • West Virginia Supreme Court
    • June 3, 1988
    ...jail indigents facing charges which do not carry a potential jail term solely because they are unable to post bond); Kolvek v. Napple, 158 W.Va. 568, 212 S.E.2d 614 (1975) (denial of equal protection for indigent to be incarcerated because he cannot furnish cash bond or proper surety in a "......
  • State v. Anderson, SC19399
    • United States
    • Connecticut Supreme Court
    • November 3, 2015
    ...substantive due process rights because statutory scheme failed to require proof of guilt beyond reasonable doubt); Kolvek v. Napple, 158 W. Va. 568, 575, 212 S.E.2d 614 (1975) (incarceration of indigent person based on his inability to post peace bond violated equal protection clause of fou......
  • In re Brandi B.
    • United States
    • West Virginia Supreme Court
    • May 17, 2013
    ...or overbreadth. 10. An “as-applied” challenge stands in contrast to a “facial” challenge to the statute. See Syl. Pt. 6, Kolvek v. Napple, 158 W.Va. 568, 212 S.E.2d 614 (1975) (“A statute may be valid on its face but unconstitutionally applied. The unconstitutional application of the statut......
  • Request a trial to view additional results

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