State v. Harr

• Decision Date: 22 February 1916
• Citation: 88 S.E. 44,77 W.Va. 637
• Parties: STATE v. HARR ET AL.
• Court: West Virginia Supreme Court

88 S.E. 44

77 W.Va. 637

STATE v. HARR ET AL.

Supreme Court of Appeals of West Virginia.

February 22, 1916

Submitted February 15, 1916.

Syllabus by the Court.

The warrant of a justice, accusing one of laboring on a Sabbath day, in violation of section 16, chapter 149, serial section 5321, Code 1913, an offense of which the justice does not have jurisdiction, except to inquire into the fact of the offense, and to hold the accused to answer upon a presentment or indictment of the grand jury, is not void for failure to negative the exceptions in the statute, "household or other work of necessity or charity," and liable to be quashed. Section 219, chapter 50, serial section 2773, Code 1913; Lacey v. Palmer, 93 Va. 159, 24 S.E. 930, 31 L. R. A. 822, 57 Am. St. Rep. 795; Harding's Case, 105 Va. 858, 52 S.E. 832; Satterfield's Case, 105 Va. 867, 52 S.E. 979; People v. Pichette, 111 Mich. 461, 69 N.W 739.

But the rule is different where the warrant is for an offense of which the justice does have jurisdiction to try and pronounce judgment, as the warrant then stands in the place of a presentment or indictment, and must charge the offense with the same particularity as in a presentment or indictment, and when the exceptions are contained in the enacting clause, and descriptive of the offense, the exception must be negatived so as to charge a complete offense under the statute. 22 Ency. Pl. & Pract. 1084; Mayo's Guide, 606; Harris on Sunday Laws, 265, § 302; State v. Richards, 32 W.Va 348, 356, 9 S.E. 245, 3 L. R. A. 705; Com. v. Hill, 5 Grat. 682; Stockton v. Morris, 39 W.Va. 443, 19 S.E. 531; 1 Am. Rul. Cases, 785.

Neither a justice nor a circuit court, on appeal, having jurisdiction to try and pronounce judgment for an offense committed under said section 16, chapter 149, serial section 5321, Code 1913 such an offense is punishable only upon the presentment or indictment of a grand jury. Const. W.Va. Art. III, section 4; section 219, chapter 50, Code 1913, serial section 2773.

When upon appeal from the judgment of conviction of the circuit court it appears that the offense charged is already barred by the statute of limitations, the judgment below should be reversed and the accused discharged from further prosecution. The commencement of a prosecution is the date of the presentment or indictment. Commonwealth v. Christian, 7 Grat. 631; State v. Beasley, 21 W.Va. 781; Boyle v. Commonwealth, 14 Grat. 674, note.

Error to Circuit Court Tucker County.

J. R. Harr and others were convicted of laboring on a Sabbath day, and bring error. Reversed and defendants dismissed.

D. E. Cuppett, of Thomas, for plaintiffs in error.

A. A. Lilly, Atty. Gen., and John B. Morrison and J. E. Brown, Asst. Attys. Gen., for the State.

MILLER J.

The warrant issued by the justice charged defendants with unlawfully laboring at digging potatoes on Sunday, in violation of section 16, chapter 149, serial section 5321, Code 1913. It did not negative the exceptions contained in the enacting clause of the statute, "household or other work of necessity or charity." And the justice assuming jurisdiction of the offense proceeded to try, convict, and pronounce judgment against defendants; and upon appeal by them to the circuit court that court overruled their motion to quash and for a new trial, and upon the verdict of guilty, pronounced the judgment of fine and costs complained of.

We do not find in section 219, chapter 50, serial section 2773, Code 1913, defining the jurisdiction of a justice of offenses committed in his county, or in any other statute, any jurisdiction of offenses under section 16, chapter 149 serial section 5321. Such ...