Schad v. McNinch

• Decision Date: 25 January 1927
• Docket Number: 5693.
• Citation: 136 S.E. 865,103 W.Va. 44
• Parties: SCHAD v. McNINCH, Sheriff.
• Court: West Virginia Supreme Court

136 S.E. 865

103 W.Va. 44

SCHAD v. McNINCH, Sheriff.

No. 5693.

Supreme Court of Appeals of West Virginia.

January 25, 1927

Submitted January 18, 1927.

Rehearing Denied Feb. 25, 1927.

Syllabus by the Court.

Conviction before a mayor for a violation of an ordinance inflicting punishment for appearing on a public street in an intoxicated condition is not a bar to a prosecution before a justice for operating a motorcar on a public highway when under the influence of intoxicating liquor. The two offenses are different.

A plea of "nolo contendere," when accepted by the court is, in its effect upon the case, equivalent to a "plea of guilty." It is an implied confession of guilt only and cannot be used against the defendant as an admission in any civil suit for the same act. The judgment of conviction follows upon such plea, as well as upon a plea of guilty. But there is a difference between the two pleas in that the defendant cannot plead nolo contendere without leave of the court. If such plea is tendered, the court may accept or decline it in its discretion.

[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Nolo Contendere; Plea of Guilty.]

Such a plea, if accepted, cannot be withdrawn and a plea of not guilty entered, except by leave of the court in the exercise of a sound discretion, and the appellate court will not interfere, except in a case of the abuse of that discretion.

Under authority of the common law, in the absence of a statute repugnant thereto, the court may impose sentence under such plea in all cases of misdemeanor.

Where there is a judgment of a court of competent jurisdiction, valid upon its face, and under which a petitioner is imprisoned, it cannot be overthrown on writ of habeas corpus in a collateral attack for reasons which do not render it absolutely void, but he will be left to his remedy by appeal.

Error to Circuit Court, Marshall County.

Habeas corpus by F. L. Schad against J. A. McNinch, Sheriff of Marshall County. Order dismissing the writ and sustaining a motion to quash it, and petitioner brings error. Affirmed.

Everett F. Moore, of Moundsville, for plaintiff in error.

WOODS J.

This writ of error is prosecuted from a judgment of the circuit court of Marshall county in dismissing the writ of habeas corpus on the hearing thereof.

L. F. Schad, the petitioner, was arraigned before the mayor of Moundsville on a charge of appearing in public view on a street of said city in a state of intoxication, pleaded guilty, and fined. Shortly after he was arrested and brought before the justice for unlawfully operating an automobile on the public highway within the county of Marshall and state of West Virginia while under the influence of intoxicating liquors and in an intoxicated condition. To this latter charge he pleaded not guilty. He was found guilty and sentenced to 60 days in jail and payment of a fine of $25. An appeal was taken to the circuit court, where defendant tendered the plea of nolo contendere, which was accepted by the court, and a sentence pronounced of 60 days in jail and a fine of $25 and costs. He was later arrested on a capias and placed in jail. Schad then petitioned the circuit court for a writ of habeas corpus, setting up the facts above stated, together with certified copies of the orders entered in each instance, and alleging that he was being unlawfully detained by the sheriff of Marshall county in said county jail. On the return day the respondent, F. A. McNinch, sheriff and ex officio jailor of Marshall county, filed his return, and moved to quash the writ, and upon the hearing the court dismissed the writ and sustained respondent's motion to quash the same. It is from this order that the petitioner prosecutes this writ, assigning as error (1) that the justice did not have jurisdiction; (2) that the circuit court did not have authority to sentence him to confinement in jail upon the plea of nolo contendere; and (3) that the judgment of the circuit court was void.

1. It is contended that the court erred in holding that the further prosecution of the petitioner on appeal from the judgment of said justice was not barred by section 220, c. 50, Code. That part of said section relied on in this case is as follows:

"*** Where any person has been convicted in the municipal or police court of any incorporated town or city such conviction shall be a bar to any criminal proceeding before a justice for the same offense."

To sustain his position, the petitioner cites Moundsville v. Fountain, 27 W.Va. 194. The record here, by certified copy from the mayor's court, shows that defendant "did disturb the peace and good order of said city by appearing in public view, at or near Eighth street in said city, in a state of intoxication in violation of *** the revised ordinances of the city of Moundsville"; that he pleaded guilty and was assessed a fine of $5 and costs. The offense for which he was later arraigned before the justice was:

"That he did commit a misdemeanor in this, that he *** on the _____ day of December, 1924, in said county, did unlawfully operate a motor vehicle commonly called an automobile on the public highway within said county and state when under the influence of intoxicating liquors and in an intoxicated condition."

The latter offense is made a misdemeanor under section 88, c. 43, Code. The justice is given concurrent jurisdiction with the circuit court to enforce such misdemeanor penalty. Code, c. 43, § 190. In the Fountain Case the offense charged as a violation of the city ordinance was the same as the crime defined in chapter 32, § 1, Code. It was unquestionably the same offense. The court held that the provision of the statute law conferring the power on the city to enforce such ordinance did not violate any of the provisions of the Constitution. This court upheld the conviction under the municipal ordinance. We do not see its application to the case here. From the exhibits with the defendant's petition, already quoted from, it is seen that the offense on which he was convicted in the municipal court is not the same offense charged in the warrant of the justice. The one is purely an offense against the city and the other is made a misdemeanor by the statute. The gravity of the latter is such that a second conviction on a like charge is made a felony. One offense is charged to have been upon the streets of the city, while the other charges the offense as taking place on the public highway. The section of the statute (chapter 50, § 220) attempted to be invoked here by the petitioner does not apply.

2. Was error committed by the court in accepting the plea of nolo contendere as a plea of guilty, and proceeding thereunder to sentence the defendant to fine and imprisonment? This plea is a stranger to our statutes, known only to the common law as adopted by our Constitution. Under the common law, the plea was an implied confession of the crime of which defendant was charged. 1 Burn's Just. 388; 2 Hawk's P. C. 225. The difference between this implied confession and the express confession by the plea of guilty is that after the latter not guilty cannot be pleaded to an action of trespass for the same injury, whereas it may at any time be done after the former. Chit. Crim. L. 293. In fact, the only difference between the significance of the two pleas is in the force each has upon a collateral proceeding. Peacock v. Judges, 46 N. J. Law, 112. The implied confession is only for the purpose of the prosecution, in the course of which it is entered, while the plea of guilty in that form may be used against the defendant in a civil suit. 1 Bish Crim. Pro. § 802; 1 Wharton, Crim. L. § 533. While a leading American text-book on criminal law and procedure (1 Bish. Crim. Pro. § 802) states that "it is pleadable only by leave of the court, and in light misdemeanors," with the exception of Tucker v. United States (C. C. A.) 196 F. 260, 41 L. R. A. (N. S.) 70, holding such a plea not proper in misdemeanors where imprisonment must be inflicted, and Commonwealth v. Shrope, 264 Pa. 246, 107 A. 729, holding the plea improper in a capital case, we find no judicial ruling, English or American, which either expressly so limits the plea or designates the class of cases wherein it may be accepted. The effect of Tucker v. United States, supra, as authority, so far as the federal courts are concerned, wherein their ruling is based on the common law, is offset by United States v. Lair (C. C. A.) 195 F. 47, and United States v. Hartwell, 3 Cliff. 221, Fed. Cas. No. 15,318, where the defendants in each instance were sentenced to imprisonments in the penitentiary...