Mount v. Quinlan

• Citation: 104 W.Va. 118
• Decision Date: 13 September 1927
• Docket Number: (No. 61.10)
• Parties: James P. Mount v. Emery Quinlan, Jailer
• Court: Supreme Court of West Virginia

104 W.Va. 118

James P. Mount

v.Emery Quinlan, Jailer

(No. 61.10)

Supreme Court of Appeals of West Virginia.

Submitted September 7, 1927.

Decided September 13, 1927.

Criminal Law Habeas Corpus Sentence of Fine and Imprisonment, for Offense for Which Punishment is Fine or Imprisonment, is Void; Person Detained Under Sentence of Fine and Imprisonment, for Offense for Which Punishment is Fine or Imprisonment, May be Discharged on Habeas Corpus.

The third point of syllabus in Ex parte Page, 77 W. Va. 467, reading as follows: "A sentence of fine and imprisonment, on conviction, for an offense for which the punishment prescribed is a fine or imprisonment, is unauthorized and void; and the person detained thereunder may be discharged therefrom by such writ (habeas corpus)," is approved and applied.

(Criminal Law, 16 C. J. § 3208; Habeas Corpus, 29 C. J. § 46.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Original application by James P. Monnt for habeas corpus, to be directed to Emery Quinlan, keeper of the jail of the city of Huntington, to secure the release of his minor son, Clovis Mount.

Prisoner discharged from custody.

F. W. Biggs, for petitioner.

Philip P. Gibson, for respondent

Lively, Judge:

This writ of habeas corpus is invcked by the petition of James P. Mount to the discharge from the castody of Emery Quinlan, keeper of the city jail of the municipality of the City of Huntington, his minor son, Clovis Mount.

Prom the petition for the writ, the return of the respondent to the writ, and agreed statement of facts, it appears that Clovis Mount was arrested by a policeman in the City of Huntington on August 27, 1927, without a warrant, and was taken before the police court where he was charged with the offense of driving a motor vehicle upon the streets of the city while being intoxicated, said charge being reduced to writing and entered upon the police register. Whether the arrest was made while the offense was being committed does not clearly appear. He was arraigned on said charge on August 29th, tried upon his plea of not guilty, found guilty, and was sentenced to pay a fine of $100.00 and to be confined for thirty days in the city jail. He was immediately committed to the jail and is now confined there. He has not paid nor offered to pay the fine imposed. The city ordinance under which he was arrested, tried, convicted and sentenced, provides that, "No person shall drive or operate any vehicle, motor driven or otherwise, upon any street, alley, avenue, road or boulevard of the city, when intoxicated or under the influence of liquor, drugs or narcotics." The penalty for violation subjects the offender to "a fine of not less than $25.00 nor more than $100.00 or imprisonment in the city jail of not less than 10 days, and not more than 30 days, at the discretion of the Police Judge."

Neither counsel for petitioner nor counsel for respondent have favored the court with a brief. The petitioner charges that his son is illegally detained, that the police judge had no jurisdiction to try the case; while respondent says the court had jurisdiction, and the detention is lawful. They agree upon the facts above stated, and submit the case without briefs or oral argument.

On the...