State Of West Va. v. Knight

• Decision Date: 08 June 1937
• Docket Number: (No. 8542)
• Citation: 119 W.Va. 6
• Parties: State of West Virginia v. Erma Knight
• Court: West Virginia Supreme Court

119 W.Va. 6

State of West Virginia

v.Erma Knight

(No. 8542)

Supreme Court of Appeals of West Virginia.

Submitted May 12, 1937.

Decided June 8, 1937.

1. Barbers and Beauticians

The regulations which the state committee of barbers and beauticians are authorized to make by Acts 1933, Second Extraordinary Session, Chapter 82, do not include the regulation of cosmetical demonstrations by salespeople.

2. Criminal Law

A warrant should describe with reasonable particularity the offense alleged to have been committed.

3. Criminal Law

Conviction upon a warrant which charges no legal offense is void.

Error from Circuit Court, Marion County. Erma Knight was convicted of unlawfully demonstrating and offering for demonstration cosmetics and other items connected with practice of beauty culture and barbering without having first been licensed by Committee of Barbers and Beauticians as a beauty operator, and she brings error.

Judgment reversed; warrant dismissed.

Rollo J. Conley, for plaintiff in error. Clarence W. Meadows, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for the State.

Hatcher, Judge:

Defendant, Erma Knight, was arrested under a warrant charging that she "did unlawfully demonstrate and/ or offer to demonstrate cosmetics and/or other items connected with the practice of beauty culture and barbering, she the said Erma Knight not having been first licensed by the State Committee of Barbers and Beauticians as a beauty operator, as specifically set forth in the regulation adopted by the said State Committee of Barbers and Beauticians on the 11th day of March, 1935". She was tried, convicted and fined upon an agreed statement of facts showing that she was aged sixteen years; that she received a small commission on sales of certain creams and cosmetics; that without charge she would apply her wares to the faces of such prospective purchasers as were willing; and that she is not a licensed beautician nor the apprentice of one. The statement also stipulated specifically that defendant was "charged with having violated the rules and regulations" of the committee adopted March 11, 1935.

The regulation referred to in the warrant provides "All demonstrators of cosmetics, permanent wave machines, and other items connected with the practice of beauty culture and barbering must be licensed as beauty operators before they work as demonstrators in the State of West Virginia." The regulations which the statute authorizes the committee to make are confined to "regulations governing the operation of barber shops, beauty shops and schools of barbering and beauty culture, including the prescribing of curriculums and standards of instruction for such schools * * * regulations for the physical examination of barbers, beauticians and apprentices * * * and regulations in regard to sanitations and cleanliness in barber and beauty shops and schools of barbering and beauty culture." Acts 1933, Second Extraordinary Session, Chapter 82, Sections 3 and 12. Without conceding that the legislature could delegate to the committee authority to make the broad regulation of March 11, 1935, it is evident that the legislature did not attempt to do so.

The state has abandoned the committee regulation, and now seeks to uphold the conviction upon another theory, expressed in its brief as follows: "The warrant uses words equivalent to those employed in the statute and the allegations of the warrant with reference to the regulation adopted may be disregarded as surplusage. * * * The statute itself creates the offense without any rule and regulation." The statute referred to is section 1 of the above chapter, which provides: "It shall be unlawful for any person to practice, or offer to practice, barbering or beauty culture in this state without first obtaining a certificate of registration for such purpose from the committee (barbers and beauticians)

We are not unfamiliar with the general rule "that the theory upon which a case was tried in the court below must be strictly adhered to on appeal". 3 Am. Jur., subject App. and Err., section 253. Accord: 5 C. J. S., idem, section 1503; Thompson V. Beasley, 107 W. Va. 75, 79, 146 S. E. 885; Central Trust Co. v. Cook, 111 W. Va. 637, 638,...