State v. Kiger

• Decision Date: 25 January 1927
• Docket Number: 5157.
• Citation: 136 S.E. 607,103 W.Va. 55
• Parties: STATE v. KIGER.
• Court: West Virginia Supreme Court

136 S.E. 607

103 W.Va. 55

STATE v. KIGER.

No. 5157.

Supreme Court of Appeals of West Virginia.

January 25, 1927

Submitted January 18, 1927.

Syllabus by the Court.

Under section 39 of chapter 47 of the Code, the mayor of a city town or village has jurisdiction in cases of assault and battery.

Parol evidence is admissible to explain a mayor's trial docket and to supply omissions therein.

One who has been convicted of assault and battery before the mayor of a city, town or village acting under authority conferred by section 39 of chapter 47 of the Code, may plead the former conviction in bar to a subsequent prosecution in the circuit court upon an indictment for the same offense.

Error to Circuit Court, Wetzel County.

Clem Kiger was convicted of assault, and he brings error. Judgment reversed, verdict set aside, and a new trial awarded.

M. H Willis, of New Martinsville, for plaintiff in error.

Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

MILLER J.

The defendant was tried in the circuit court upon an indictment charging him with unlawfully assaulting one George Snyder, found guilty by a jury, and assessed a fine of fifty dollars and sentenced to ten days' imprisonment in the county jail.

By his two special pleas the defendant alleged that the offense for which he was indicted was the same for which he had been tried and convicted before the mayor of the town of Smithfield, namely an assault and battery upon George Snyder and Austin Clark, within the limits of the said town of Smithfield, and that he was fined five dollars and the costs of the proceeding, by said mayor.

To these pleas the State, by its prosecuting attorney, tendered its two special replications; the first alleging that the complaint in the former case, as set out in the defendant's plea No. 2, was bad, and that legal conviction could not be had upon the same; the second special replication alleging that the defendant had colluded with and procured the special officer making the arrest to arrest him and lodge complaint against him before the mayor. The first special replication is answered by the transcript of the mayor's docket, exhibited with the special pleas, and later tendered in evidence on the trial in the circuit court. There is no evidence to s upport the State's second special replication.

The trial court permitted these pleas and special replications to be filed, and issue was joined thereon and on defendant's plea of not guilty.

On the trial the court refused to permit the introduction of evidence of the former conviction. Defendant tendered the following transcript from the mayor's docket:

"Town of Smithfield, County of Wetzel and State of W.Va. v. Clem Kiger. Misdemeanor.

This 30th day of September 1923, one Clem Kiger did commit an assault and battery on the person of Austin Clark and George Snyder in the presence and sight of me E. E. McIntire, Mayor of said Town, and I thereupon ordered the arrest of said Clem Kiger, and I thereupon appointed Howard Brummage to make said arrest.

Thereupon said Howard Brummage arrested said Clem Kiger and brought him before me at my said office in said town for trial and I thereupon arraigned said Clem Kiger upon said charge, and for plea thereto said Clem Kiger says that he is guilty of assault and battery upon said Austin Clark and George Snyder.

It is my judgment that said Clem Kiger do pay a fine of $5.00 and costs of this prosecution. [Signed] E. E. McIntire, Mayor."

It is contended by counsel for the State, that a municipal corporation chartered under the general laws of this State has no inherent power through its police officers to arrest and fine for assault and battery, and that, therefore, a conviction for such offense before the mayor is invalid for want of jurisdiction, and is not a bar to a prosecution for the same act or offense in the circuit court.

By section 39 of chapter 47 of the Code, the mayor of a city town or village is made ex officio a justice and conservator of the peace within such municipality, and within the same is vested with all the powers and duties vested by law in a...