State v. Gillilan

• Decision Date: 29 March 1902
• Citation: 51 W.Va. 278,41 S.E. 131
• Court: West Virginia Supreme Court
• Parties: STATE v. GILLILAN.

41 S.E. 131

51 W.Va. 278

STATE

v.GILLILAN.

Supreme Court of Appeals of West Virginia.

March 29, 1902.

CRIMINAL LAW—MISDEMEANOR—SENTENCE— SURETIES FOR GOOD BEHAVIORSALE OF LIQUOR.

1. Courts of record have a discretionary jurisdiction, in case of conviction, for a gross common-law misdemeanor, punishment for which has not been prescribed by statute, to require of the defendant sureties for good behavior. To tins extent only, the principles announced in State v. Gould. 26 W. Va. 268, are overruled.

2. Such jurisdiction does not exist when the conviction is for a statutory misdemeanor or a common-law misdemeanor, for which punishment is prescribed by statute.

3. The simple selling of intoxicating liquors is a statutory offense.

(Syllabus by the Court.)

On rehearing. Reversed.

For former opinion, see 38 S. E. 516.

Gilmer & Gilmer, for plaintiff in error.

R. H. Freer, Atty. Gen., for the State.

POFFENBARGER, J. At the November term, 1899, of the circuit court of Greenbrier county, W. M. Gillilan, upon the trial of an indictment charging him with having unlawfully sold, offered, and exposed for sale, at retail, spirituous liquors, wine, porter, ale, beer, and drinks of a like nature, without a state license therefor, was convicted; and the court, in addition to imposing a fine of $15 and costs, further ordered "that said Gillilan be required to give bond, with good security, in the penalty of five hundred dollars, conditioned to be of good behavior towards all the citizens of this state, and not to sell intoxicating drinks contrary to law for the period of twelve months, " and the defendant was committed to the custody of the sheriff until the bond should be given. The court having overruled his motion to set aside so much of the judgment as required this bond, he excepted, and has brought the case here on a writ of error and supersedeas.

The indictment charges a statutory offense. The simple selling of intoxicating drinks is not a common-law crime or offense. Bish. St. Crimes, § 984. "An ale house, if not disorderly, is, under the common law, lawful; no license being required to keep it." 1 Bish. Cr. Law, § 505, citing Rex v. Ivyes, 2 Show. 468. This indictment is under section 1, c. 32, of the Code; and the punishment for the offense is prescribed by section 3 of said chapter, and is a fine of not less than $10 nor more than $100, and, at the discretion of the court, imprisonment in the county jail not exceeding three months. As the selling of intoxicating liquors was not an offense at common law, there is no common-law punishment for it. The only punishment, therefore, must be that prescribed by the statute. But if there had been common-law punishment for the selling of liquors, it would be repealed by the statutory provision in reference thereto. "We can always separate the offense from the punishment. So that for example, a statute which provides a new punishment for an old offense repeals by implication only so much of the prior law as concerns the punishment; leaving it permissible to indict an offender either under the old law, whether statutory or common, and inflict on him, upon conviction, the punishment ordained by the new, or under the new, statute, at the election of the prosecuting power." Bish. St Crimes, § 166. In addition to this, we have a statute which prohibits the infliction of any other than statutory. punishment, when it exists. "A common-law offense, for which punishment is prescribed by statute, shall be punished only in the mode so prescribed." Section 3 of chapter 152 of the Code. Hence, if the selling charged in the indictment were a common-law offense, it could be punished only under section 3 of chapter 32 of the Code. However, this is not conclusive of the question, unless it appear that the requisition of sureties is punishment There was a dis-cretionary jurisdiction at common law in the court trying a person charged with misdemeanor to bind the accused, after conviction, and as a part of the judgment, to good behavior for a time, and that jurisdiction was not statutory. It was a jurisdiction inherent in every court of record having criminal jurisdiction. In addition to this, there were statutes under which persons not convicted of any offense might be required to enter into recognizances to keep the peace and be of good behavior. They were the same in principle and in substance as the provisions found in chapters 148 and 153 of the Code. "If a person have been convicted of a misdemeanor, it is usually part of the judgment that he shall find security for his good behavior for some time." 9 Bac. Abr. p. 308. "This requisition of sureties has been several times mentioned before as part of the penalty inflicted upon such as have been guilty of certain gross misdemeanors; but there, also, it must be understood rather as a caution against the repetition of the offense, than any...