. State v. Coat

Decision Date09 March 1901
Citation49 W.Va. 140
CourtWest Virginia Supreme Court
Parties.State v. Thacker Coat and Coke Co.
1. Criminal Law Special Appearance Process.

An appearance for the purpose of taking advantage of defective execution or nonexecution of process must be a special appearance for that purpose alone, and must be so stated at the time of making the appearance, (p. 143).

2. General Appearance Pleadings Process.

When a general appearance has been entered in a case, and pleadings made up, the defendant cannot on a subsequent day of the court be permitted to enter a special appearance for the purpose of taking advantage of defective process or defective or nonexecution thereof, (p. 144).

3. Indictment Endorsement Thereon.

The indorsement of "A true bill," and signed by the foreman of the grand jury, is no part of the indictment, except for identification, (p. 144).

4. Trial by Court Illegal Evidence Error.

When a case is tried by a court in lieu of a jury, It Is not an error, for which the appellate court will reverse, to hear illegal testimony, if there be enough legal testimony to justify the judg ment. (p. 145).

5. Evidence Exceptions Demurrant J udgment.

In such a case the party excepting must be regarded as a demurrant to the evidence, and the judgment of the court below will not be reversed unless it be plainly erroneous, (p. 145).

6. Criminal Prosecutions Corporations Evidence.

In criminal prosecutions against corporations, the fact of the incorporation of defendant does not have to be proven unless such fact is put in issue as provided in section 41, chapter 125, Code. (p. 145).

Error to Circuit Court, Mingo County.

The Thacker Coal and Coke Company was convicted of obstructing a highay, and brings error.

Affirmed.

Sheppard & Goodykoontz, for plaintiff in error.

Edgar P. Rucker, Atty. Gen., and L. C. Anderson, for the State.

M c Whorter, Judge:

The Thacker Coal and Coke Company, a corporation, was convicted in the circuit court of Mingo County upon indictment for knowingly, wilfully and unlawfully obstructing a certain public road in said county commencing at Matewan in Magnolia district in said county, and running to Delome in said district of said county. On the 10th day of January, 1899, the defendant appeared by counsel, and moved the court to quash the summons and return thereon, which motion was overruled, and to which ruling defendant excepted. Defendant then moved the court to quash the indictment, which motion was also overruled. Defendant then entered its plea of not guilty. On the 11th day of January, 1899, the following order was entered in the case:

"This day came as well the State by its attorney, as the defendant by its attorney, and thereupon the defendant moved the court to quash the summons and the return of the sheriff thereon endorsed. Which motion upon consideration of the court is overruled, to which ruling of the court the defendant then and there excepted.

Thereupon the defendant moved the court to quash the indictment herein, which motion was also overruled by the court, to which said ruling the defendant again excepted. Thereupon the defendant for plea says it is not guilty in the manner and form as the State in its indictment hath alleged; and of this it puts itself upon the country; and the State by its attorney doth the like, and by consent a jury was waived, and the matters of law and fact herein are submitted to the judgment of the court in lieu of a jury. And the court having fully heard the evidence and arguments of counsel is of opinion to and doth find the defendant guilty as charged in the indictment, and assessed its fine at twenty-five dollars.

Therefore it is considered by the court that the State recover against said defendants, The Thacker Coal and Coke Company, the said sum of twenty-five dollars, the fine aforesaid by the court, in form aforesaid assessed and its cost by it about its prosecution in this behalf expended and that a capias profine issue therefor." And on the 16th day of January, 1899, the said order was set aside as having been inadvertently entered, and certifying that on the same day (January 11th) another order was entered in the case as follows, to-wit:

"This day came the defendant and appeared especially to this cause for the purpose of moving to quash the return of service of the summons in this cause; and thereupon did move the court to quash said return which motion was argued by counsel, and upon consideration whereof the court is of the opinion to and doth overrule said motion, to which ruling the defendant then and there excepted. And the defendant not waiving his said exceptions demurred to the indictment herein and also moved to quash the same, which demurrer and motion after argument of counsel the court doth overrule. Thereupon the defendant for plea says it is not guilty in manner and form as the State in its indictment hath alleged, and of this it puts itself upon the country and the State by its attorney doth the like, and by consent a jury was waived and the matters of law and fact herein are submitted to the judgment of a court in lieu of a jury. And the court having fully heard the evidence is of opinion and so finds that the defendant is guilty as charged in the indictment, and assesses its fine at twenty-five dollars to which opinion and finding of the court the defendant objected and excepted.

It is therefore considered by the court that the State recover of said defendant the said sum of twenty-five dollars, the fine aforesaid by the court in form aforesaid assessed, together with its cost by it about its prosecution in this behalf expended, and that a capias profine issue therefor. Thereupon the defendants moved the court to set aside the judgment and verdict of the court which motion the court overruled and to which ruling the defendant excepted and a suspension of the execution of judgment for sixty days is granted."

Defendant obtained a writ of error, and says the court erred in overruling the motion to quash the summons and officer's return of service thereon. An appearance for the purpose of taking advantage of defective execution or non-execution, of process, must be a special appearance for that purpose alone, and must be so stated at the time of making the appearance. As held in Buckingham v. McLean, 13 How. 150, "When a defendant in error or an appellee wishes to have a case dismissed because no citation has been served upon him, his counsel should give notice of the motion when his appearance is entered or at the same term; and also that his appearance is entered for that purpose. A general appearance is a waiver of the want of notice," and in Farrer & Brown v. U. S, 3 Peters 459, "The decisions of this court have uniformly been, that an appearance cures any defects in the form of process." Williams & Keys v. Campbell, 1 Wash. (Va.) 153; Gracie v. Palmer, 8 Wheat. 699; Pollard v. Dwight, 4 Cranch. 428; and Layne v. 0. R. R., 35 W. Va. 438, (syl. pt. 2). "In order to take advantage of a defect in the summons or return, the defendant must appear for that purpose only, and must so state in submitting the motion. If he appears generally whether to move a continuance or for any other purpose, he will be regarded as having waived all defects in the writ or the return." Bank v. Bank, 3 W. Va. 386; Mahany v. Kephart, 15 W. Va. 609; Blankinship v. Railroad Co., 43 W. Va. 135. "The object of the service of process is to bring the party into court. A judgment by default with process badly executed would not be legal." Bank v. Bank and Mahany v. Kephart, just cited. It is true the first motion made by defendant on making its appearance was to quash the writ and return, but after excepting to the ruling of the court in overruling its motion, moved the court to quash the indictment and entered its plea of not guilty, and on the next day, January 11th, after the overruling of defendant's motions to quash the writ and return, and the indictment, and making up the pleadings without withdrawing its appearance, motions and plea of not guilty, the record shows, it "appeared especially to this cause for the purpose of moving to quash the return of service of the summons in this cause, and thereupon did move to quash said return," which motion was again overruled. Defendant's counsel in support of his position cites Steele v. Harkness, 9 W. Va. 23. But that case fails to relieve him, as it is distinctly stated in the opinion that when the cause was called for trial, "the counsel for ...

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