State v. Feed Vendetta.

• Decision Date: 13 April 1920
• Citation: 86 W.Va. 186
• Parties: State v. Feed Vendetta.
• Court: West Virginia Supreme Court

86 W.Va. 186

State

v.Feed Vendetta.

Supreme Court of Appeals of West Virginia.

Submitted April 6, 1920.

Decided April 13, 1920.

1. Criminal Law Provisions of Prohibition Law for Additional Penalty for Second Offense Are Constitutional.

The provisions of the act, chapter 32A Barnes' Code 1918, known as the Prohibition Law, providing for additional penalties for second offenses committed under the act, are constitutional and valid. (p. 188).

2. Indictment and Information Indictment for Second Offense Need not Aver That Former Conviction Has not Been Reversed.

An indictment under said act need not aver that the former conviction pleaded has not been overruled, set aside or reversed, such facts if true being defensive and the burden being upon defendant to prove the same on the trial. (p. 188).

3. Same Indictment for Second Offense Need and Aver That Former Warrant Was Regular.

Where the indictment for the second offense avers conviction of a prior offense by confession of the defendant on a warrant then pending before a justice, it is good on motion to quash, although it fails to aver that such warrant was issued upon complaint of a credible person under oath, or that the offense charged was committed in the presence of the justice. The law presumes such warrant was regular and issued upon proper information, without such averment. (p. 188).

4. Same -Indictment Held to Charge Second Offense Under Pro-hibition Law.

When such prior conviction was upon a warrant charging defendant with the unlawful manufacture, sale, etc. of intoxicating liquors inhibited by section 3 of said act and the subsequent offense charged, inhibited by section 31 of said act as amended by Acts 1917, was for bringing and carrying from one place to another in the state intoxicating liquors in excess of one quart for personal use, the indictment so averring sufficiently charges a second offense under the act and is good on demurrer or motion to quash. (p. 188).

5. Statutes Amendment to be Construed as if Included in Orig-inal Act.

An amendment to a statute should generally be construed as if it had been included in the original act. (p. 190).

Certified. Questions from Circuit Court, Marion County.

Fred Vendetta was indicted for a felony for committing a second offense under the Prohibition Law, his motion to quash the indictment was overruled, and questions were certified.

Affirmed.

Jno. T. Simms, for the State.

L. C. Musgrave and Charles Powell, for defendant.

Miller, Judge:

Upon an indictment for a felony for committing a second offense, under chapter 32A, Barnes' Code 1918, known as the Prohibition Law, the court below overruled defendant's motion to quash the indictment, and certified the questions arising thereon to this court for its decision.

The constitutionality of the act upon which the, indictment was founded is the first question certified. This question seems to have been abandoned. It was not presented in oral or printed argument by counsel for defendant, and for that reason was only casually referred to by counsel representing the State. The validity of this act, we think, is unquestionable. State v. Graham, 224 U. S. 616.

The second question certified is whether the failure of the indictment to expressly negative that the justice's judgment against the defendant pleaded as the first offense was set aside, or that an appeal was taken and a new trial awarded, and the result of a new trial, if one was had, renders the indictment bad. We recently decided that an indictment need not aver that a former conviction has not been overruled, set aside or reversed, such fact if true being defensive, and the burden being upon defendant to prove the same on the trial. State v. Goldslrohm, 84 W. Va. 129, 99 S. E. 248, and cases cited. Moreover, as the, judgment of the justice plainly shows that it was rendered upon the confession of the defendant, it is doubtful whether the defendant could have, prosecuted an appeal. Stale v. Emsweller, 78 W. Va. 214.

Another proposition urged by counsel for defendant, not specifically certified, but perhaps covered by the fourth or general question, namely, the sufficiency of the indictment as presented on the face thereof, is that the indictment is bad for not averring that the warrant of the justice was issued on information, under oath of some credible person, as provided by section 223, chapter 50 of the Code, 1918. That section does say that such warrant shall be issued only on such information. The indictment alleges that theretofore, to-wit, "in the Justice's Court of William W. Conaway, a Justice of the Peace of Marion County, West Virginia, on the 30th day of January, 1918, before William W. Conaway, Justice of the Peace, then presiding, then and there, Fred Vendetta was in due form of law tried and convicted, upon confession, of a misdemeanor, to-wit of unlawfully manufacturing, selling, offering, keeping, storing and exposing for sale and barter, intoxicating liquors as defined by section 1 of chapter 13, Acts of the Legislature of West Virginia, 1913, upon a certain warrant then and there pending against the said Fred Vendetta, before said Justice Conaway, for that he, the said Fred Vendetta, on the day of January, 1918, in the county of Marion, did unlawfully, manufacture, sell, offer, expose, keep and store for sale, and barter intoxicating liquors as defined by Section 1 of Chapter 13, Acts of the Legislature of West Virginia, 1913, and therefore it was considered by the said Justice of the Peace then, that the said Fred Vendetta should be imprisoned in the jail of said Marion County and labor on the roads of said County for a period of three months from and after said 30th day of January, 1918, and pay to the State, of West Virginia, as a fine Two Hundred Dollars and the costs of said prosecution as by the record of said Justice doth more fully appear." It is contended that the averment that defendant "was in due form of law tried and convicted, upon confession, of a misdemeanor" amounts to a mere conclusion of law, and does not satisfy the supposed requirement that it be also averred that the warrant was issued upon an information made under oath of a credible person, as this fact was substantially averred in Slate v. Hoilman, 82 W. Va. 98. But the averment that the, conviction by confession was upon a warrant then and there pending against defendant is complete, and must it not be presumed that it was a warrant issued upon proper comolaint? We think such fact arises as a legal presumption from the fact averred respecting the warrant. In Bush v. Brannon, 82 W. Va. 58, 61, we decided that orders and judgments of courts of limited powers entered in proceedings over which they have jurisdiction are entitled to the same favorable presumption respecting their validity as the law applies to judgments of courts of general jurisdiction. This principle was there applied in the case of the probate of a will, where, it was contended that all the facts justifying the probate were not made to appear on the face of the order of probate. The county court in that case, though one, of limited jurisdiction, has general jurisdiction in probate matters. But with respect to proceedings before a justice, we have decided that...