State v. Mills

• Decision Date: 15 October 1929
• Docket Number: 6376.
• Citation: State v. Mills, 150 S.E. 142, 108 W. Va. 31 (W. Va. 1929)
• Parties: STATE v. MILLS.
• Court: West Virginia Supreme Court

150 S.E. 142

108 W.Va. 31

STATE v. MILLS.

No. 6376.

Supreme Court of Appeals of West Virginia.

October 15, 1929

Submitted October 8, 1929.

Syllabus by the Court.

A person who, after engaging in an "altercation and a fight" within a city boundary, was arrested and convicted of an assault and battery under an ordinance in conformity with power invested in the city council, by charter, to enact ordinances "to prevent and prohibit any tumult, riot, quarrel, angry contention, or abusive language, and to prevent the use of insulting epithets assaults, assault and battery, and fix fines and punishments therefor," may not plead such conviction as a bar to an indictment for an assault and battery based on the same "altercation and fight." The two offenses are not identical in this, that the former contemplates disturbance of the peace and good order of the city; the other has a more enlarged object in view--the maintenance of the peace and dignity of the state.

(Additional Syllabus by Editorial Staff.)

Phrase "breach of the peace" is generic and includes every act of violence which tends to disturb that sense of security which every person feels necessary to his comfort and to secure which government is instituted and maintained, and it includes all violations of public peace, order, and decorum such as to make an affray, threaten to beat, wound, or kill another, or commit violence against another person.

Error to Circuit Court, Raleigh County.

G. O Mills was convicted of assault and battery, and he brings error. Affirmed.

Jno. Q Hutchinson and Grover C. Trail, both of Beckley, for plaintiff in error.

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

WOODS, P.

G. O. Mills was indicted and tried before the criminal court of Raleigh county for malicious wounding of one Day Snuffer. The jury returned a verdict finding him guilty of assault and battery, which verdict was set aside, on motion of the defendant, on the ground that the jury was improperly instructed. At the second trial the defendant tendered a plea of former jeopardy, setting up the fact that he had been previously arraigned before the mayor of the city of Beckley for assault and battery in the same "altercation and fight," and had there been adjudged to pay a fine of $1. The trial court refused the plea. The case was then submitted to the court, in lieu of a jury, on an agreed statement of facts, wherein it was admitted by the defendant that there was sufficient evidence to warrant the court, or a jury, in finding him guilty of assault and battery, and that he is so guilty, but for the action had with reference to the prosecution therefor before the mayor of Beckley. The facts appearing in the agreed statement are substantially those embodied in the special plea. The court found the defendant guilty of an assault and battery, and sentenced him to four months in jail and adjudged that he pay a fine of $50. It is from this judgment that the present writ is prosecuted.

Since the correctness of the judgment here depends upon the agreed statements of facts, the ruling of the circuit court on the special plea becomes immaterial.

Chapter 50, § 219 (1), Code, gives the justice jurisdiction of the offense of assault and battery. The state may proceed in a prosecution for such offense by indictment as an offense at common law. State v. McKain, 56 W.Va. 128, 49 S.E. 20. Where the offense is committed in a city, town, or village, the mayor thereof may try and punish the offender as ex officio justice of the peace. Code, c. 47, § 39. Under such circumstances the conviction may be pleaded in bar of an indictment for the same offense in the circuit court. This court takes judicial notice of the provisions of a city charter. The charter of the city of Beckley gives the municipality, among other things, powe r to enact ordinances "to prevent and prohibit any tumult, riot, quarrel, angry contention, or abusive language, and to prevent the use of insulting epithets, assaults, assault and battery, and fix fines and punishments therefor." Acts 1927 (Municipal Charters) c. 18, § 21, subsec. 36. As it was in the agreed state of facts that there was an ordinance enacted making assault and battery an offense against the city, so the case here is not open to the objection, held by the courts in some jurisdictions that, in the absence of such power given by the charter to enact the ordinance covering the subject, the ordinance would be void for that reason alone. The punishment authorized by this ordinance for an infraction thereof does not appear in evidence, except that it was punishable by fine or imprisonment, or both. The cases generally hold that a conviction under an ordinance or under the general law would not be a bar to a prosecution under the other, on the ground that the same act might constitute two offenses--one against the municipality and one against the state. The courts generally refuse to sustain the plea of former jeopardy on the ground that there are two offenses arising from the same act. Note in 17 L. R. A. (N. S.) 69. In other words, an act may be violative of both a state law and a municipal ordinance so as to constitute separate offenses, and an acquittal for the violation of one is not a bar to a subsequent prosecution for the violation of the other. This last-stated proposition finds favor in the courts of Alabama, Arkansas, California, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Minnesota, Mississippi, North Carolina, Ohio, Oklahoma, Oregon, South Carolina, Tennessee, and Texas. Note, 21 Ann. Cas. 67. In fact, it is an universal rule, aside from constitutional limitations.

With this setting let us examine our own decisions. One of the first cases involving a similar question was that of Moundsville v. Fountain, 27 W.Va. 182. Fountain was convicted under a warrant by the mayor of Moundsville for selling liquor within the town without first having obtained a license therefor from the town. He was...