State v. O'brien

• Decision Date: 07 September 1926
• Docket Number: (C. C. No. 379.)
• Citation: 134 S.E. 464
• Court: West Virginia Supreme Court
• Parties: STATE. v. O'BRIEN.

134 S.E. 464

STATE.

v.O'BRIEN.

(C. C. No. 379.)

Supreme Court of Appeals of West Virginia.

Sept. 7, 1926.

(Syllabus by the Court.)

Case Certified from Circuit Court, Jackson County.

Fred H. O'Brien was convicted of operating a motor vehicle on a public road when intoxicated. The trial court certified the correctness of rulings for review. Dismissed, as improperly docketed.

Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

Harold A. Ritz, of Charleston, and T. J. Sayre, of Ripley, for defendant.

LIVELY, J. Defendant, Fred O'Brien, was convicted before a justice of the peace on a warrant charging him with having operated a motor vehicle on a public road while intoxicated. Upon appeal to the circuit court his demurrer to the warrant and motion to quash the same wore sustained. The special judge sitting in the case, on his own motion, certified the correctness of his rulings to this court for review.

We are confronted at the threshhold by a motion to dismiss this case, because the action of the court in sustaining the demurrer to the warrant and quashing the same is a final judgment, and hence, if reviewable at all, is reviewable by writ of error, under the provisions of chapter 69, Acts 1915 (chapter 135, § 31, Barnes' Code 1923), and therefore the case does not come within the purview of the certification statute (section 1, Barnes' Code 1923, as amended by the Acts of 1925 [Acts 1925, c. 28]). There is merit in this contention. The sustaining of the demurrer to the warrant and quashing it, on the ground that the facts charged do not constitute a crime, brings the case within the provisions of section 31, c. 135, Code. On an appeal from a justice our statute provides that the court shall proceed to try the case as upon an indictment or presentment. At common law, when a demurrer was sustained to an indictment, because it was fatally defective in substance, the prisoner was discharged. The judgment was considered to be final. Under our present law such judgment is also final, its finality being suspended for 30 days, in which the state may apply for a writ of error, as provided by said section 31, c. 135, Code. The judgment is final in the sense that the indictment cannot be amended, even before the expiration of the 30 days allowed for appeal. This court, if the case were on appeal, might hold that the lower court had erred in sustaining the demurrer to the indictment, but it could not order that an amendment be made.

As the...