State of West Virginia v. Lowe.

Citation21 W.Va. 782
PartiesState of West Virginia v. Lowe.
Decision Date30 June 1883
CourtSupreme Court of West Virginia

1. The twelfth section of chapter 152 of the Code of West Virginia in so far as it authorizes a crime to be prosecuted and punished in a county, in which the offense was not committed, when thecrime was committed within one hundred yards of the boundary-line of the county, is unconstitutional, null and void, it being in conflict with article III. section 14 of our Constitution, (p. 786.)

2. A judgment will be reversed, where the court below in an instruction excepted to has assumed a materia] fact, unless the record shows affirmatively, that the fact so assumed was admitted expressly or tacitly, or that it was so fully sustained by uncontradicted evidence as to necessitate the Inference that it was an undisputed fact. (p. 794.)

3. Where a person other than a regular judge has tried a ease below, and no objection was made on the trial to his authority, and the record is silent as to the mode of his appointment or selection, no objection to his authority can be raised in the appellate court for the first time provided, that under the Constitution and laws he could have been elected or appointed to sit as judge in such case, as the appellate court will in such case presume, that he was legally elected or appointed, (p. 784.)

Writ of error to a judgment of the circuit court of the county of Calhoun, rendered on the 26th day of October, 1881, upon an indictment against Nimrod Lowe for a violation of the revenue laws by selling spirituous liquors without a license, allowed upon the petition of the State.

Hon. William E. Lively, special judge, rendered the judgment complained of.

Green, Judge, furnishes the following statement of the case:

The grand jury of Calhoun county, on February 22, 1881, on their oaths presented, that in duly, 1880, in said county Nimrod Lowe did unlawfully and without a State license therefor sell, offer and expose for sale spiritous liquors, wine, porter, ale, beer, and drinks of a like nature. The defendant pleaded not guilty to this presentment, and on October 26, 1881, the jury found the defendant not guilty as alleged; and the court entered up a judgment thereon, that the defendant from further prosecution on this indictment he discharged and go thereof without day.

There is copied into the record what is called a bill ot exceptions, there having been placed on the record-hook a memorandum, that "upon the trial ot this cause the State of West Virginia, by the prosecuting attorney of this county, tendered her hill of exceptions to certain opinions and rulings ot the court given against her upon the said trial." This paper called a hill ot exceptions is in the words and figures following:

"Be it remembered, that upon the trial of this cause, and after the evidence and argument of counsel had been fully heard, and before the jury had been instructed to retire to consider of their verdict, the prosecuting attorney having introduced evidence tending to show that the defendant had sold spirituous liquors, on the 8d day of July, 1880, in the county of Roane, but within one hundred yards of the boundary line between the counties of Roane and Calhoun, and the defendant having offered no evidence of a State license to him to sell spirituous liquors, wine or alcohol in either of the said counties, the prosecuting attorney moved the court to instruct the jury as follows:

"Plain tiff's Instruction.

"If the jury believe from the evidence that the defendant sold spirituous liquors without having a State license therefor within one year next preceding the finding of this indictment, and within one hundred yardsof the boundary line of the county of Calhoun, then the jury should find the defendant guilty, and assess his fine at not less than ten nor more than one hundred dollars.

"To which instruction the defendant, by his attorney, objected, and the court sustained the objection and refused to give the said instruction to the jury, and on the motion of the defendant, by his attorney, the court instructed the jury as follows:

"DBF e n d a n t's In stk uction.

"The court instructs the jury that inasmuch as the evi- dence for the State shows that the offense was committed within the county of Roane, within one hundred yards of the county line of Calhoun county, and the indictment tailing to show on its face that the offense was committed in Roane county, within one hundred yards ot the county line of Calhoun county, they should find the defendant not guilty; further, that a conviction on the indictment in this case could not be pleaded in bar of a prosecution against the defendant for the same offense in the county of Roane.

"To which instruction the prosecuting attorney objected, but the court overruled the objection; to which opinion and rulings of the court in refusing to give the instruction asked on behalf of the State, and in giving the instruction asked on behalf of the defendant, the State, by her prosecuting attorney, excepted and tendered this her bill of exceptions, which is signed, sealed and ordered to be made a part ot the record.

"Wm. E. Lively [seal.]"

The State of West Virginia by Robert G. Linn, prosecuting attorney ot Calhoun county, presented a petition tor a writ of error to said judgment, which was allowed by this Court on December 10, 1881; and the case was submitted to the decision of this Court on the argument of the counsel for the defendant in error only.

No appearance for the State.

John M. Hamilton for defendant in error

relied upon § 14, x\rt. III. of the Constitution.

Green, Judge, announced the opinion ot the Court:

The first question presented by this record is, whether this Court consider the bill of exception signed by Win. E. Lively as a part of the record. This Court takes judicial notice, that Wm. E. Lively is not a circuit judge in this State. The record in this case begins thus:" Pleas before Honorable William E. Lively, elected and qualified a special judge of the circuit court of Calhoun county, held at the court house, on Wednesday the 26th of October, 1881." And the certificate attached to it is signed by the clerk of the circuit court of Calhoun county and certifies," that the foregoing is a fall, perfect and complete transcript of the records of the proceedings had in said court in the case of the State of West Virginia against Nimrod Lowe."

So far as the record in this case discloses there is nothing to show how William E, Lively was appointed or by what authority he acted as judge; hut the proceedings in the lower court are presumed to have been regular in this respect, unless the contrary affirmatively appears upon the record. It is only therefore incumbent on us to enquire, whether or not under any circumstances by the laws of this State, he could have properly acted as judge in the trial of this case. His election or appointment and regular qualification will be presumed, the record not showing anything to the. contrary, provided such election or appointment and qualification to try the case were warranted by the Constitution and laws of this State. See Sweeptzerv. Games et al. 19 Ark. 96; Vandever etal v. Vandever et al. 8 Met. (Ky.) 137; Feaster v. Wood/ill, 28 Ind. 498. We know that the regular term of the circuit court ot Calhoun county in the year 1881 began on October 25, 1881, or should regularly have been commenced on that dav, and therefore, that the 26th day ot October, 1881, would have been or might have been during a regular term of said circuit court. Now in The State of West Virginia v. Williams, 14 W. Ya. 861, syl. 1, this Court decided, that under the legislation ot this State a special judge might be elected by the members of the bar to hold the general term of a circuit court, where from any cause the judge fails to appear or if present cannot preside, and that such legislation when applied to a general term of a court was constitutional. As this case was or might have been tried at a regular term, we must on the principles 1 have laid down presume, that Wm. E. Lively was legally and constitutionally elected and qualified as a special judge, and that he was authorized to try this case, nothing to the contrary appearing in the record, and that therfore the bill of exceptions signed by him constitutes a part ot the record. So regarding it what was called the plaintiff's instruction was properly refused, tor section 14 of article III. of our present Constitution, following in this respect section 8 ot article II. of our first Constitution, see Code of W. Va. p. 21, and Acts ot 1883, p. 145, provides that: "Trials of crimes and misdemeanors, unless herein otherwise provided, shall he by a jury of twelve men, public, without unreasonable delay, and in the county where the alleged offense was committed, unless upon petition of the accused and for good cause shown, it is moved to some other county." And neither in our first nor in our present Constitution, nor in any amendment of it, is there any provision for the trial of such a misdemeanor as that, for which the defendant was prosecuted in this case, in any other countv than the one, in which the alleged offense was committed.

This provision ot our Constitution confers on a person accused of crime, with reference to the place where he is to be tried, the privileges, which the common law conferred on him, thus making these common law privileges of the accused constitutional rights, which the Legislature cannot take from him without his consent. There never has been a question as to the fact, that all the privileges conferred on the accused by these constitutional provisions were also conferred on him by the common law. For by the common law crimes of every description could only he prosecuted in the county wherein they were committed; but it an impartial trial could not be had in that county, the case might certainly be removed at the instance of the...

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