Malouf v. City of Roanoke
| Decision Date | 24 February 1941 |
| Docket Number | Record No. 2379. |
| Citation | 177 Va. 846 |
| Parties | JOE MALOUF v. CITY OF ROANOKE. |
| Court | Virginia Supreme Court |
Present, Holt, Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.
1. AUTREFOIS, ACQUIT AND CONVICT — Offenses against Different Jurisdictions — Section 4775 of the Code of 1936 — Prosecution under Statute No Bar to Prosecution under Ordinance — Case at Bar. — In the instant case, accused, convicted by a police justice without a warrant for conducting a baseball pool in violation of a city ordinance, appealed and gave bail. The police justice then issued a warrant, entered judgment of conviction, and noted an appeal on the warrant. In the hustings court the appeal was dismissed and accused discharged from custody on the ground that the warrant charged an offense against a state statute whereas accused had been tried for violating a city ordinance, and the court remanded the warrant to the police justice for further proceedings. When the warrant and order were received by the police justice, he prepared another warrant, containing the same dates as the former warrant, specifically charging accused with the violation of the city ordinance, entered the same judgment of conviction, and noted an appeal. To this substituted warrant the accused filed a plea of former jeopardy, in which it was alleged that he was the same person named in the former warrant and judgment, and that the charges in the former proceedings and this proceeding were the same.
Held: That there was no merit in the plea of former jeopardy, since under section 4775 of the Code of 1936 a prosecution under either a state statute or a municipal ordinance for one act, which is a violation of both, is not a bar to a prosecution for the same act by the other sovereign.
2. WARRANTS — Amendment — Section 4989 of the Code of 1936 — Duty of Hustings Court to Amend on Appeal from Police Justice — Case at Bar. — In the instant case, accused, convicted by a police justice without a warrant for conducting a baseball pool in violation of a city ordinance, appealed and gave bail. The police justice then issued a warrant, entered judgment of conviction, and noted an appeal on the warrant. In the hustings court the appeal was dismissed and accused discharged from custody on the ground that the warrant charged an offense against a state statute whereas accused had been tried for violating a city ordinance, and the court remanded the warrant to the police justice for further proceedings. When the warrant and order were received by the police justice, he prepared another warrant, containing the same dates as the former warrant, specifically charging accused with the violation of the city ordinance, entered the same judgment of conviction, and noted an appeal.
Held: That when it was brought to the attention of the trial court by accused that the appeal warrant charged him with an offense against the State, whereas he had been tried before the police justice for an offense against a city ordinance, it became the duty of the trial court, under section 4989 of the Code of 1936, to amend the warrant so as to conform it to the facts so brought to its attention.
3. APPEAL AND ERROR — Appeal from Police Justice — Trial for Violation of Statute on Appeal from Conviction under Ordinance. — Where the act of an accused was a violation of both a city ordinance and a state statute, and the accused was prosecuted before a police justice for the offense against the city ordinance, he cannot be tried on appeal for an offense against the state statute.
4. JUSTICES OF THE PEACE — Police Justices — Jurisdiction — After Appeal to Hustings Court — Case at Bar. — In the instant case, accused, convicted by a police justice without a warrant for conducting a baseball pool in violation of a city ordinance, appealed and gave bail. The police justice then issued a warrant, entered judgment of conviction, and noted an appeal on the warrant. In the hustings court the appeal was dismissed and accused discharged from custody on the ground that the warrant charged an offense against a state statute whereas accused had been tried for violating a city ordinance, and the court remanded the warrant to the police justice for further proceedings. When the warrant and order were received by the police justice, he prepared another warrant, containing the same dates as the former warrant, specifically charging accused with the violation of the city ordinance, entered the same judgment of conviction, and noted an appeal.
Held: That the police justice lost all jurisdiction over the case when he noted the appeal, let the accused to bail, and delivered the papers to the clerk of the hustings court.
5. JUSTICES OF THE PEACE — Police Justices — Appeal Effect on Judgment of Justice — Case at Bar. — In the instant case, accused, convicted by a police justice without a warrant for conducting a baseball pool in violation of a city ordinance, appealed and gave bail. The police justice then issued a warrant, entered judgment of conviction, and noted an appeal on the warrant. In the hustings court the appeal was dismissed and accused discharged from custody on the ground that the warrant charged an offense against a state statute whereas accused had been tried for violating a city ordinance, and the court remanded the warrant to the police justice for further proceedings. When the warrant and order were received by the police justice, he prepared another warrant, containing the same dates as the former warrant, specifically charging accused with the violation of the city ordinance, entered the same judgment of conviction, and noted an appeal.
Held: That the effect of the appeal from the police justice's decision was not only to deprive him of further jurisdiction but to annul his judgment of conviction.
6. APPEAL AND ERROR — Appeals from Inferior Tribunals — Court Which Hears Case De Novo Acts as Court of Original Jurisdiction. — A court which hears a case de novo, disregards the judgment of the court below, hears evidence anew and new evidence, and makes final disposition of the case, acts not as a court of appeals but as one exercising original jurisdiction.
7. JUSTICES OF THE PEACE — Police Justices — Appeal — Error to Permit Judgment to Be Introduced in Evidence. — The perfection of an appeal not only annuls the judgment of a police justice, but it is reversible error for a trial court to permit such judgment to be introduced in evidence before the jury on the trial of the case on appeal.
8. JUSTICES OF THE PEACE — Police Justices — Appeal — Trial on Appeal Not a Review. — The question on appeal from a police justice's decision is not whether the judgment of the justice is correct, but whether the accused is guilty of the offense charged and for which he has been tried. The trial of the case on appeal is not a review of the proceedings before the police justice. In determining the guilt or innocence of the accused the judgment of the justice is disregarded.
9. JUSTICES OF THE PEACE — Police Justices — Appeal — Effect of Judgment of Hustings Court Dismissing Case and Discharging Accused — Case at Bar. — In the instant case, accused, convicted by a police justice without a warrant for conducting a baseball pool in violation of a city ordinance, appealed and gave bail. The police justice then issued a warrant, entered judgment of conviction, and noted an appeal on the warrant. In the hustings court the appeal was dismissed and accused discharged from custody on the ground that the warrant charged an offense against a state statute, whereas accused had been tried for violating a city ordinance, and the court remanded the warrant to the police justice for further proceedings. When the warrant and order were received by the police justice, he prepared another warrant, containing the same dates as the former warrant, specifically charging accused with the violation of the city ordinance, entered the same judgment of conviction and noted an appeal.
Held: That the final judgment of the hustings court dismissing the case from the docket and discharging accused from custody, whether right or wrong, was a final disposition of the prosecution.
Error to a judgment of the Hustings Court of the city of Roanoke. Hon. J. L. Almond, Jr., judge presiding.
The opinion states the case.
Walter H. Scott and T. W. Messick, for the plaintiff in error.
R. S. Smith and R. T. Edwards, for the defendant in error.
Joe Malouf, without requiring a warrant to be issued, was convicted by a police justice of the city of Roanoke for conducting a "baseball pool" on September 24, 1939, in violation of a city ordinance. He immediately sought an appeal and gave the required bail. Thereafter the police justice issued a warrant under date of September 26, 1939, entered a judgment of conviction as of September 25, 1939, and noted an appeal on the warrant. These papers were duly filed with the clerk of the Hustings Court of the city of Roanoke and the case placed on the trial docket.
When the case was called for trial in the Hustings Court on October 6, 1939, the accused moved to dismiss the warrant on the ground that it charged an offense against the State statute, whereas he had been tried before the police justice for violating a city ordinance. The Commonwealth attorney conceded the facts stated to be true, whereupon the court entered an order reading:
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