State v. Campbell

• Decision Date: 23 June 1896
• Citation: 42 W.Va. 246,24 S.E. 875
• Court: West Virginia Supreme Court
• Parties: STATE. v. CAMPBELL.

24 S.E. 875

42 W.Va. 246

STATE.

v.CAMPBELL.

Supreme Court of Appeals of West Virginia.

June 23, 1896.

Criminal Law—Return of Summons—Trial for Misdemeanor—Default.

1. A return of a summons to answer an indictment, directed to the sheriff of a particular county, is not bad because it omits to state that it was served in that county.

2. Though a summons upon an indictment requires the defendant to appear on a given date, it is not necessary that the case be tried that day, or that any note of it be made on the record that day.

3. No judgment by default for imprisonment can be rendered under section 20, c. 158, Code 1891, for any misdemeanor, either under chapters 32 or 151, or for any other statutory misdemeanor, but there may be judgment for a fine by default.

4. A defendant may appear by counsel in any misdemeanor case, though it be punishable by imprisonment, but in no case can there be judgment of imprisonment without having the defendant present at its rendition.

(Syllabus by the Court.)

Error to circuit court, Tyler county.

Thomas J. Campbell was convicted of selling liquor, and brings error. Reversed.

John A. Howard, for plaintiff in error.

T. S. Riley, Atty. Gen., for the State.

BRANNON, J. Campbell was indicted in Tyler county for selling liquor and a summons having been served on him, in default of hisappearance, the court rendered judgment that he pay a fine and be imprisoned in jail, and awarded a capias to hear judgment. Later, Campbell, by attorney, moved the court to set aside the judgment, which the court refused to do, and then awarded a capias for the body of Campbell, and to imprison him under the judgment. Campbell appeals.

Campbell, by attorney, makes several points against this judgment. First, he says the sheriff does not show in what county he served the summons. But this is never done. The summons being directed to the sheriff of a given county, when he indorses a return officially, it is taken that he served it within his county, and did not usurp powers without his county. Second, he says that as the summons was returnable on the second day of the term, and the defendant was not called, and no step taken in the case, that day, but the judgment was on a later day, it is error. The indictment began the prosecution. When it was returned the case was in court. The process was only designed to warn the defendant to appear to it, and did not itself begin the prosecution. Process issued out of court is in a pending proceeding, and need not be docketed or otherwise noticed on the day of its return, as the case is in court. It is different where a notice is given by a private party that he will file a motion or petition not before in court, and which first has a place as a pending case when docketed. In the latter case it must be docketed on the day named in the notice, else it lapses. O'Brien v. Camden, 3 W. Va. 20; Gas. Co. v. Wheeling, 7 W. Va. 22.

The main attack on the judgment is that without the presence of defendant, in person or by counsel, and without jury, the defendant was found by the court guilty, and judgment rendered upon the indictment taken for confessed on summons served.

I remark, first, that the judgment order is somewhat novel, in that it renders judgment for both fine and imprisonment in the absence of the defendant, and then does the seemingly useless thing of awarding a capias ad audiendum judicium. Why award a capias to hear judgment, when final judgment has already been given? Why not award such writ as was awarded later, after the defendant appeared by attorney and moved to set aside the judgment, —that is, a writ commanding the sheriff to take the defendant and commit him to jail, —if there were such writ? How are we to construe the judgment? It plainly imposes fine and imprisonment, leaving no further judgment to be given. If so, why a capias to hear judgment? What good would it do defendant if he could not open the judgment? But if it is to be construed as a judgment only for a fine, and open for further order as to imprisonment, it would violate Pifer's Case, 14 Grat. 710, holding that two judgments—one for a fine at one time, another for imprisonment at another time—could not be rendered. But I construe the judgment to be what it plainly says, —a final judgment for both fine and imprisonment. Then is it correct? The attorney general would sustain it under section 20, c. 158, Code 1891, reading: "On any indictment or presentment founded on any provision of chapter thirty-two, or one hundred and fifty-one, or for any statutory misdemeanor, for which no imprisonment may be inflicted, process may be issued immediately, returnable forthwith. If the accused appear and plead to the charge, the trial shall proceed without delay. If, being summoned, he fail to appear and plead, the court may render judgment in the same manner as if he had confessed the charge in court." This is an important statute, used in practice constantly. What is its meaning? How far does it innovate on the common-law practice? I do not find that it has been construed in this court. In felony, not only can there be no judgment by default, but the defendant must appear in person, and cannot by attorney. Parson's Case, 39 W. Va. 464, 19 S. E. 876. How as to misdemeanors? In these the personal appearance is not necessary, and appearance may be by attorney. It is true that we find the books saying that personal presence is necessary in all cases where corporal punishment is assigned, —which would cover misdemeanors, where the punishment is bodily. Whart. Cr. Pl. & Prac. § 540; 1 Bish. Cr. Proc. § 270. Some hold that where bodily punishment must (not may) be imposed, like petit larceny in this, state, the appearance must be personal, and that it is only where it definitely appears that no bodily punishment will be inflicted that his presence at the trial can be dispensed with. 1 Bish. Cr. Proc. § 268, note 2; note to Warren v. State, 68 Am. Dec. 220. But I think the rule is that in all misdemeanor cases the defendant may appear by attorney, and the trial be had in absence of defendant. Opinion in Pifer's Case, 14 Grat. 713; Cooley, Const. Lim. 319; Warren v. State, 68 Am. Dec. 214, and note 220, 221; 1 Chit. Cr. Law, 411, 412. But no judgment of imprisonment can be rendered until he is brought in by capias ad audiendum judicium. But that is not just the question before us. That question is whether the court could treat the indictment as if confessed, and enter judgment, without appearance in person or by counsel. In criminal proceedings, under common-law practice, there can be no judgment by default. Whart. Cr. Pl. & Prac. § 540; 1 Bish. Cr. Proc. § 267. But the statute changes this rule to some extent, at least. To what extent? The statute is very broad and unqualified, allowing a judgment by default in all cases of offenses under chapters 32 and 151, where fine only is imposed, and where imprisonment is imposed, if we concur in the attorney general's construction (that is, that all offenses under those chapters are included under the power to render judgment by default, no matter whether imprisonment be imposed or not, and that the language, "for which no im-prisonment may be inflicted, " is to be applied, not to offenses under chapters 32 and 151 at all, but only to other statutory misdemeanors), while counsel for Campbell contends that those words apply to offenses under those two specified chapters, as well as to other statutory misdemeanors. I confess that the structure of the sentences favors the attorney general's construction, but the legislature is, as all of us are, often inexact in the use of language to...