State v. Hoilman.

• Decision Date: 19 March 1918
• Citation: 82 W.Va. 98
• Court: West Virginia Supreme Court
• Parties: State v. Hoilman.

82 W.Va. 98

State

v.Hoilman.

Supreme Court of Appeals of West Virginia.

Submitted March 5, 1918.

Decided March 19, 1918.

1. Indictment and Information Second Offense Sufficiency.

An indictment under Sec. 3, Ch. 32A, Code, known as the Prohibition Act, alleging the facts and circumstances of a former conviction, from which it clearly appears by necessary inference, that the accused was tried and convicted for a previous violation of the same statute, by the mayor of a certain city clothed with; the jurisdiction of a justice of the peace and acting in such capacity, and that, after such former conviction and within one year next prior to the finding of the indictment, the accused '' did unlawfully and feloniously manufacture, sell, offer, keep, store and expose for sale, and solicit and receive orders for liquors and absinthe, and drinks compounded with absinthe, against the peace and dignity of the state, '' sufficiently charges a *' second offense " and is good on demurrer. (p. 99).

2. Criminal Law Parol Evidence Judicial Record.

The mayor having styled the proceedings in his docket "'City of Logan, West Virginia vs. W. E. Hoilman," and signed it as mayor only, parol evidence is admissible to explain the record and, supply omissions therein, it appearing from a copy of his warrant that he presided at such trial in the capacity of justice of the peace. (p. 102).

3. Same Summary Conviction Judgment' Construction.

In such case the warrant should be read in connection with the mayor's docket to ascertain the crime of which the accused was convicted, it appearing from the judgment that the accused was found guilty "as charged in the warrant." (p. 102).

Error to Circuit Court, Logan County.

W. E. Hoilman was convicted of the second offense of selling intoxicating liquor in violation of the statute, and he brings error.

Affirmed.

J. B. Wilkinson, for plaintiff in error. E. T. England, Attorney General, Charles Ritchie, Assistant Attorney General, and Jno. T. Simms, for the State.

Williams, Judge:

At the April term, 1917, of the circuit court of Logan county W. E. Hoilman was convicted of the "second offense" of selling intoxicating liquors in violation of the statute, Sec. 3, Ch. 32A, Barnes' Code, and sentenced to confinement in the penitentiary for a term of two years. On petition to this court a writ of error was awarded.

The record presents but two questions: (1) Whether the indictment is sufficient, and (2) whether a certified copy of the record from the docket of the mayor of the City of Logan proves a previous conviction for violating the same statute; in other words, whether the first offense is established by that record.

The statute provides that, for the first offense, the accused shall be deemed guilty of a misdemeanor and prescribes the penalty therefor, and then proceeds as follows: "and upon conviction of the same person for the second offense under this act, he shall be guilty of a felony and be confined in the penitentiary not less than one nor more than five years; and it shall be the duty of the prosecuting attorney in all cases to ascertain whether or not the charge made by the grand jury is the first or second offense; and if it be a second offense, it shall be so stated in the indictment returned, and the prosecuting attorney shall introduce the record evidence before the trial court of said second offense, and shall not be permitted to use his discretion in charging said second offense, or in introducing evidence and proving the same on the trial.''

A demurrer and motion to quash the indictment were overruled, and defendant was put upon trial.

It is insisted by his counsel that the indictment does not sufficiently allege the "second offense", because it fails to aver the following essential facts, viz.: (a) Jurisdiction in the court that convicted him for the first offense; (b) the identity of the prisoner as the person formerly convicted; and (c) that the first conviction was for a violation of Sec. 3, Ch. 32A, Code.

The indictment charges, "that on the 21st day of December, 1915, Don Chafin made information and complaint upon oath before J. B. Wilkinson, Jr., Mayor of the City of Logan, Logan County, West Virginia, and as such ex officio Justice of the peace, that W. E. Hoilman, on the 18th day of December, 1915, in the city of Logan, County and State aforesaid, and within one year next preceding said complaint, did unlawfully manufacture, sell, offer, keep, store and expose for sale, and solicit and receive orders for liquors, and absinthe, and drinks compounded with absinthe, and upon said complaint, the said J. B. Wilkinson, Jr., Mayor of the said city of Logan, and ex officio Justice of the Peace of the said county, issued a warrant under his hand, dated the 21st day of December, 1915, and directed to any constable of said county, commanding said constable in the name of the State of West Virginia, to forthwith apprehend the said W. E. Hoilman and bring him before the said J. B. Wilkinson, Jr., Mayor and ex officio Justice of the Peace as aforesaid, to answer said charge, and to be dealt with in relation thereto as the law directs. That on the day and year last aforesaid, the said W. E. Hoilman, was apprehended by a constable of said county, intrusted with the execution of said warrant, and brought before the said J. B. Wilkinson, Jr., Mayor and ex officio Justice of the Peace, as aforesaid, at the office of the said mayor in the said city of Logan, County and State aforesaid, to answer the charge contained in said warrant against him, and was then and there arraigned before the said J. B. Wilkinson, Jr., Mayor and ex officio Justice of the Peace, upon said warrant, and to the charge therein contained against him, the said W. E. Hoilman entered a plea of not guilty, as charged in said warrant.

"Thereupon, and then, and there, the said W. E. Hoilman was placed upon his trial before the said mayor and ex officio Justice of the Peace on said warrant of arrest and the said mayor and ex officio Justice of the Peace then and there proceeded to hear all the evidence introduced in the case, both for and against the said W. E. Hoilman, touching the matters charged against the said W. E. Hoilman in the said warrant of arrest, and having heard and considered said evidence, the said J. B. Wilkinson, Jr., Mayor and ex officio Justice of the Peace as aforesaid, found the said W. E. Hoil- man guilty as charged in said warrant of arrest, and adjudged the said W. E. Hoilman to pay a fine of $100.00, and to be confiined in the jail of Logan County, West Virginia, for the term of two months, all of which appears by the record of said proceedings, had before the said J. B. Wilkinson, Jr., mayor and ex officio Justice of the Peace, as aforesaid; and the grand jurors aforesaid in and for the body of the said county of Logan, upon their oaths, do further present that after the aforesaid complaint was made against the said W. E. Hoilman, and after the issuing of the warrant in the manner aforesaid against the said W. E. Hoilman, after the arrest of the said W. E. Hoilman, his arraignment, trial and conviction in the manner and form aforesaid, and within one year next prior to the finding of this indictment in the county of Logan, he, the said W. E. Hoilman, did unlawfully and feloniously manufacture, sell, offer, keep, store, and expose for sale, and solicit and receive orders for liquors and absinthe, and drinks compounded with absinthe, against the peace and dignity of the state."

The charges in the indictment are full and complete, every material fact necessary to inform the prisoner of the particular offense with which he is charged being alleged. The jurisdiction of the court needed not to...