Page v. Johnson

• Citation: 87 S.E. 849,77 W.Va. 467
• Decision Date: 25 January 1916
• Docket Number: 3077.
• Parties: PAGE v. JOHNSON, SHERIFF.
• Court: Supreme Court of West Virginia

87 S.E. 849

77 W.Va. 467

PAGE v. JOHNSON, SHERIFF.

No. 3077.

Supreme Court of Appeals of West Virginia.

January 25, 1916

Submitted January 21, 1916.

Syllabus by the Court.

While justices of the peace have concurrent jurisdiction within their county of criminal proceedings cognizable by them, the one first issuing the warrant has the exclusive right to hear and determine the case.

But if after one justice has acquired jurisdiction of a prosecution another justice of the same county, assuming to act under a warrant issued by him against the same person for the same offense, tries the accused and sentences him to imprisonment notwithstanding the pendency of the first proceeding, his judgment is erroneous only, and not void; and the person detained pursuant to such sentence cannot be discharged therefrom upon writ of habeas corpus.

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 by Charles Page against J. F. Johnson, Sheriff, etc. Prisoner discharged.

Joseph M. Crockett, of Welch, for petitioner.

F. C Cook, of Welch, for respondent.

LYNCH J.

By petition to this court for writ of habeas corpus, Charles Page avers that he is imprisoned unlawfully, by J. F. Johnson as sheriff, in the jail of McDowell county. He alleges that, on January 3, 1916, he was arrested, upon a warrant issued by E. S. Crockett, a justice of that county, charged with a violation of section 36, c. 10, Acts 1915, prohibiting the solid shooting of coal, and was taken promptly before said justice, who continued the case until January 10, 1916, the accused then entering into a recognizance for his appearance at the time and place fixed for trial; that in the meantime, notwithstanding the pendency of the prosecution before Crockett, then undetermined, petitioner was rearrested for the same offense, upon a warrant issued by A. C. Hufford, another justice of the county, who, after refusal of a continuance on motion of the accused and his affidavit of a just defense, tried him for the offense charged, fined him $50, and sentenced him to work on the county roads for 90 days. Petitioner prays a release from the alleged unlawful confinement. Responding to the writ awarded and duly served, actual production of the prisoner before this court being waived, Johnson, as sheriff and jailer, filed a written return, wherein he says he detains the petitioner--

"by reason of a commitment issued by A. C. Hufford, a justice of the peace of McDowell county, directed to this respondent, requiring that he receive and keep said Charles Page in said jail for the period therein set out."

The mittimus to the sheriff is not, as averred, exhibited with the return, or otherwise filed in this court. A transcript of the proceedings before Justice Hufford is lodged with the papers in the case, but is in no wise identified as an exhibit in the petition or return. And, while the fact of imprisonment is stated in the petition and admitted in the return, the cause therefor, whether default as to payment of fine or labor on the...