Miller v. Commonwealth

• Decision Date: 15 January 1892
• Citation: 88 Va. 618,14 S.E. 161
• Parties: Miller. v. Commonwealth.
• Court: Virginia Supreme Court

14 S.E. 161

(88 Va. 618)

Miller.

v.Commonwealth.

Supreme Court of Appeals of Virginia.

Jan. 15, 1892.

¹

Constitutional Law — Jury Trial in Criminal Cases—Right of Appeal.

Code, §4106, which confers upon justices of the peace jurisdiction over the offense of keeping a bawdy-house, concurrent with that of the county and corporation courts, is repugnant to Const, art. 1, § 10, guarantying to the accused in all criminal prosecutions the right to a speedy trial by an impartial jury; and the fact that sections 4107 and 4108 give in such a case the right of appeal and trial by jury in the appellate court does not relieve the statute of its repugnancy. Laoy, J., dissenting.

Error to circuit court, Rockingham county.

Prosecution against Mary Miller for keeping a house of ill fame. Defendant was convicted before a justice of the peace, and brings error to a judgment of the circuit court affirming the conviction. Reversed.

Strayer & Liggett, for plaintiff in error.

The A ttorney General, for the Commonwealth.

Lewis, P. The plaintiff in error, Mary Miller, was tried before a justice of the peace of Rockingham county, and sen-fenced to pay a fine of $100, and to be confined in jail six months, for keeping a house of ill fame. From this judgment of the justices she appealed to the county court, and after the docketing of the appeal in that court, and before any further proceedings in the case were had, she moved the court to quash the warrant and to discharge her from custody, on the ground that the justice had no jurisdiction of the case, and therefore that the judgment was void. But the motion was overruled, to which ruling she excepted. The case was then tried before a jury, which returned a verdict of guilty, fixing the punishment at 1 month and 20 days' confinement in jail, and the payment of a fine of $17. A motion for a new trial was then made and overruled, and judgment pronounced in accordance with the verdict, which judgment having been afterwards affirmed ("pro forma, " as the record states) by the circuit court, a writ of error was awarded by one of the judges of this court. The statutory punishment for the offense in question is confinement in jail not exceeding one year, and a fine not exceeding $200. Code, § 3790. And by an act of assembly approved March 14, 1878, now carried into section 4106 of the Code, justices of the peace and police justices are given jurisdiction over the offense concurrent with that of the county and corporation courts. Section 4107, however, gives the accused, in case of a conviction, the right of appeal to the county, corporation or hustings court; and provides that, unless let to bail, he shall be committed to jail by the justice until the next term of such court. And by section 4108 it is provided that the accused shall be entitled to a trial by jury in the same manner as if he had been indicted for the offense in the appellate court, it is contended that section 4106 of the Code, in so far as it gives jurisdiction to a justice of the peace to try a case like the present, is void, because it denies to the accused the constitutional right of trial by jury; in other words, that it is repugnant to that clause of the constitution of Virginia which ordains that, "in all capital or criminal prosecutions, a man hath the right to demand the cause and nature of his accusation, * * * and to a speedy trial by an impartial jury." Article 1, § 10. It is undoubtedly a true rule in the construction of state statutes that the legislature possesses all legislative power not prohibited by the fundamental law. It is also true that every legislative act is presumed to be valid. Where, however, there is a clear incompatibility between the constitution and the act, the latter is invalid, and ought to be so declared, for the constitution is the paramount law, binding alike upon all the departments of the government. Is there, then, such incompatibility between the act in question, so fur as it relates to a case like the present, and the constitution? After careful consideration, we are of opinion that there is. The guaranty of the constitution relied on is plain and unambiguous. It declares in unmistakable terms that in all criminal prosecutions the accused hath a right to a speedy trial by an impartial jury. Lan guage could hardly be plainer or less liable to misconstruction. It must be conceded, however, that, notwithstanding the broad language of the constitution, there are many minor offenses, such as Sabbath-breaking, drunkenness, vagrancy, and a vast variety of others, which are triable without a jury, because they were so triable when the constitution was adopted, and the right of trial by jury which is secured is the right as it existed at the time the constitution was adopted. This was decided in the recent case of Ex parte Marx, 86 Va.40, 9 S. E. Rep. 475, and such is the well-settled law on the subject. Byers v. Com., 42 Pa. St. 89; Work v. State, 2 Ohio St. 296; Inwood v. State, 42 Ohio St. 186; Trigally v. Mayor of Memphis, 6 Cold. 382; State v.Glenn, 54 Md.572; 4 Bl. Comm. 280. But the offense of keeping a bawdy-house is not of that class. Such an offense is a public nuisance, and therefore indictable at common law. 1 Russ. Crimes, 298. Hawkins, a writer of high repute, speaks of it as an offense of a gross nature, punishable at common law, he says, not only with fine and imprisonment, but also with such infamous punishment as to the court in its discretion shall seem proper. 1 Hawk. P. C. c. 74. Accordingly there is no authority of which we are aware holding that the offense is, or that at any time in our juridical history it has ever been, triable without a jury: and it is needless to say that it is not competent for the legislature, by classifying it, as is done in section 4106 of tiie Code, with offenses which are so triable, to...