Seay v. Commonwealth

• Decision Date: 15 January 1931
• Citation: 155 Va. 1087
• Parties: LEON SEAY v. COMMONWEALTH.
• Court: Virginia Supreme Court

Page 1087

155 Va. 1087

LEON SEAY v. COMMONWEALTH.

Supreme Court of Virginia, Richmond.

January 15, 1931.

Present, Campbell, Holt, Hudgins, Epes and Gregory, JJ.

1. APPEAL AND ERROR — Appeal from Magistrate's Court by Accused upon Conviction — Magistrate's Prerogative after Conviction. — A defendant who has been convicted upon a warrant tried by a justice of the peace has the right of appeal to the Circuit Court pursuant to section 4989 of the Code of 1919, provided the appeal is applied for at any time within ten days from such conviction. When judgment of conviction is pronounced the only prerogative a justice of the peace can lawfully exercise is to admit the accused to bail.

2. APPEAL AND ERROR — Appeal from Justice's Court — Magistrate's Prerogative after Appeal — Dismissal of Appeal. — In the instant case accused was convicted in a magistrate's court and appealed to the circuit court. It was the contention of accused that until the appeal was placed upon the court docket by the clerk thereof the trial justice had absolute dominion over the proceedings and might, with the satisfaction of the judgment by the accused, dismiss the same.

Held: That this contention was not well founded.

3. JUSTICES OF THE PEACE — New Trial — Holding Judgment in Abeyance. — There is no statutory provision providing for a new trial to be had before a justice of the peace in a criminal case, nor is there any warrant of law authorizing him to hold in abeyance the judgment of conviction.

4. JUSTICES OF THE PEACE — Powers are Statutory. — A justice of the peace is clothed with such powers only as are conferred upon him by statute.

5. JUSTICES OF THE PEACE — Magistrate's Court not One of Record — Provision that all Papers be Forthwith Returned and Filed with the Clerk of the Court Vested with Concurrent Jurisdictions. — A magistrate's court is not a court of record, hence the mandatory provision of section 4989 of the Code of 1919 that the justice shall forthwith return and file with the clerk of the court vested with concurrent jurisdiction all papers, whether an appeal be applied for or not. When this act has been performed by the justice of the peace his jurisdiction is at an end and any further act committed in connection with the judgment is ultra vires and void. The appeal is then perfected and it is the duty of the clerk to docket the case.

6. APPEAL AND ERROR — Appeal from Justice's Court — Right of Appellant to Dismiss the Appeal. — In the instant case accused was convicted in a magistrate's court and appealed to the circuit court. It was contended by accused that the right of appeal was a personal one and that accused could satisfy the judgment and dismiss the appeal afterwards, even though the same had been perfected in the magistrate's court.

Held: That the accused had no such right.

7. APPEAL AND ERROR — Appeal from Magistrate's Court — Court alone Vested with Power of Dismissal. — When one convicted of a criminal offense by a justice of the peace elects to appeal from the judgment, then ipso facto jurisdiction is conferred upon the court appealed to, and the Commonwealth is then as much a party to the transaction as it was in the proceedings before the justice of the peace, and the court — not the accused — is vested with the power of dismissal. Having acquired jurisdiction by the election of the accused to exercise his right of appeal, the case is on the docket of the court and is to be tried de novo.

8. AUTREFOIS, ACQUIT AND CONVICT — Appeal from Magistrate's Court to Circuit Court — Dismissal of Warrant by Magistrate after Appeal — Case at Bar. — Accused was indicted for violation of the prohibition law and demurred to the indictment, which demurrer the court overruled; then accused filed a plea alleging that he had been arrested on two warrants charging different crimes growing out of the same transaction, namely, impeding officers and aiding and abetting in transportation; that he had been tried and convicted for the offense of impeding officers and paid the fine and costs assessed and that the warrant had been dismissed; that the acts set forth in the indictment constituted one and the same offense, and that a trial upon the indictment would be violative of section 4775 of the Code of 1919. The Commonwealth demurred to the plea, which demurrer the court sustained. This action of the court was assigned as error. It appeared that accused had appealed from his conviction by the magistrate to the circuit court and was bailed to appear before the circuit court, and that upon the day for his appearance he paid to the trial magistrate, in the presence of the clerk of the court, the fine and costs assessed against him and the warrant was dismissed by the magistrate.

Held: That there was no merit in this assignment of error, as the action of the magistrate in accepting payment of the fine and dismissing the warrant was ultra vires.

9. INTOXICATING LIQUORS — Prior Conviction — Aiders and Abettors — Prior Conviction of Principal — Case at Bar. — In the instant case the indictment charged accused with the commission of a felony and an instruction by the court empowered the jury to fix the punishment by confinement in the penitentiary, which could only be done in the case of a felony. It was conceded that the averments in the indictment of former convictions of the accused were not averments of such offenses as would make a subsequent offense of a similar nature a felony. Therefore, the issue resolved itself into the question, could accused be convicted of a felony based upon an infraction of the prohibition law by alleging and proving that his principal had been guilty of prior violations of the prohibition law?

Held: That the accused could not be thus convicted, and that the demurrer to the indictment should have been sustained.

10. ACCOMPLICES AND ACCESSORIES — Same Punishment as Principal — Intoxicating Liquors — Aiders and Abettors — Prior Conviction of Principal. — While it is true that the general rule is that an accessory is amenable to the same punishment as the principal, this general rule is not applicable to one aiding and abetting a violator of the prohibition act where his principal has been guilty of prior offenses. In derogation of the general rule, section 4675(4), Code of 1930, fixes the status of an aider or abettor and provides that the punishment shall be the same as if the defendant were solely guilty of such violation.

11. STATUTES — Construction — Intention of Legislature. — In the construction of a statute the chief concern of the court is to ascertain the intention of the law-making body.

12. INTOXICATING LIQUORS — Sentence and Punishment — Prior Conviction — Sections 4675(4)-4675(6) of the Code of 1930. — It was the intention of the legislature by sections 4675(4)-4675(6) of the Code of 1930 to prevent a repetition of violations of the prohibition law by the same person by imposing increased penalties upon him for a subsequent conviction. It is inconceivable that the legislature intended to mete out the same punishment to one guilty in fact of only a misdemeanor as is meted out to an habitual violator of the prohibition law.

13. INTOXICATING LIQUORS — Sentence and Punishment — Prior Conviction — Sections 4675(4)-4675(6) of the Code of 1930 — Aiders and Abettors — Principal Guilty of Prior Offenses — Case at Bar. — In the instant case accused was indicted for a felony for aiding and abetting the transportation of liquor. Had accused been indicted as principal, this being his first offense under the transportation provision of the statute, he would only have been guilty of a misdemeanor, and proof of prior convictions would have accentuated merely the degree of punishment and would not have raised the grade of the offense from a misdemeanor to a felony. On the other hand, if the contention of the Commonwealth was sound, that by aiding and abetting his principal, conceding the principal to be guilty of a second offense, accused was transformed from a misdemeanant into a felon and amenable to a punishment of five years in the penitentiary.

Held: That the contention of the Commonwealth was not sound.

14. INTOXICATING LIQUORS — Prior Conviction no Part of the Offense Charged. — The allegation of a prior conviction under the prohibition statute is no part of the offense charged, but it is the averment of a fact which, if proven, increases the penalty.

15. INTOXICATING LIQUORS — Prior Conviction — Increase of Punishment — Strict Construction of Statute. — Statutory enactments providing for a severer punishment, if the crime of which accused is convicted is a second, third, or subsequent offense, are highly penal in their character, and their application ought not to be extended to cases which do not, by the very strictest rules of construction, come under their provisions.

Appeal from a decree of the Circuit Court of Essex county.

The opinion states the case.

William A. Wright, J. D. Mitchell and W. W. Beverly, for the plaintiff in error.

John R. Saunders, Attorney-General, and Edwin H. Gibson and Collins Denny, Jr., Assistant Attorneys-General, for the Commonwealth.

CAMPBELL, J., delivered the opinion of the court.

The accused, Leon Seay, was tried in the Circuit Court of Essex county upon an indictment containing two counts. Only the first count is herein involved and it reads as follows:

"The grand jury of the Commonwealth of Virginia, in and for county of Essex, upon their oaths present that R. L. Wright, in the county of Hanover and in the circuit court of said county, on the 27th day of September, 1926, was convicted of unlawful transportation of ardent spirits; that afterwards, to-wit, on the 9th day of December, 1926, in the city of Richmond, Virginia, and in the Hustings Court of said city, the said R. L. Wright was convicted for this, to-wit, that in the said city of Richmond, on the 7th day of October, 1926, the said R. L. Wright did unlawfully and feloniously...