State v. Simmons, No. 8327.

CourtSupreme Court of West Virginia
Writing for the CourtMAXWELL
Citation185 S.E. 417
Docket NumberNo. 8327.
Decision Date14 April 1936
PartiesSTATE. v. SIMMONS.

185 S.E. 417

STATE.
v.
SIMMONS.

No. 8327.

Supreme Court of Appeals of West Virginia.

April 14, 1936.


Syllabus by the Court.

1. The question of the alleged disqualification of a justice of the peace because of interest cannot be raised for the first time on appeal, where the disqualification, if arising under special circumstances, was known, or, if arising under general law, was presumed to be known.

2. Where a justice of the peace took cognizance of a misdemeanor case, within his general jurisdiction, after the enactment of Code, 50-17-14 and 7-5-15, and before the repeal thereof, the question of the alleged disqualification of the justice to act in such case, on the ground that the said statutes were unconstitutional because of the manner therein provided for payment of the fees of the justice, not having been raised

[185 S.E. 418]

until after judgment had been rendered by the justice and the case had passed beyond his control, must be deemed to have been waived.

Error to Circuit Court, Randolph County.

Harvey Simmons was convicted of operating a motor vehicle on a public highway while he was under the influence of intoxicating liquor, and he brings error.

Affirmed.

E. L. Maxwell, of Elkins, for plaintiff in error.

Homer A. Holt, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen., for the State.

MAXWELL, Judge.

The defendant was awarded a writ of error to the judgment of the circuit court of Randolph County imposing a fine of $50.00 and jail sentence of 90 days upon conviction for operating a motor vehicle on a public highway of said county while he was under the influence of intoxicating liquor.

The trial in the circuit court was on a warrant of arrest which had been issued against the defendant by a justice of the peace of said county October 22, 1934. The defendant having been found guilty by the justice, appealed to the circuit court.

The error assigned by the defendant and relied on by him was the action of the circuit court in overruling his motion that he be discharged from the prosecution on the ground that the proceeding before the justice was void and therefore the court had no jurisdiction of the case on appeal-- that the justice was without authority to issue the warrant under the then existing statutes pertaining to fees of justices in misdemeanor cases; that said statutes were tainted with unconstitutionality because of the manner therein provided for the payment of such fees. The same ground was urged in support of motion to set aside the verdict.

The defendant's said position is based upon the holding of this court in the case of Williams v. Brannen, Justice of the Peace, 116 W.Va.--, 178 S.E. 67, decided January 15, 1935. We there held that the system then current of compensating justices of the peace as set forth in Code 1931, 50-17-14, and 7-5-15, was unconstitutional. It was provided in Code, 50-17-14 that in misde meanor cases, fees of the justice, not paid by the parties, should be charged and recovered as directed in...

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3 practice notes
  • State ex rel. Moats v. Janco, No. 12979
    • United States
    • Supreme Court of West Virginia
    • 16 Marzo 1971
    ...of Grafton case this Court said that the maxim remains inviolate in this State. In the criminal case of State v. Simmons, 117 W.Va. 326, 185 S.E. 417, the defendant was found guilty by a justice of the peace of the offense of operating a motor vehicle on a public highway while under the inf......
  • Frazier v. Grace Hosp. Inc, No. 8313.
    • United States
    • Supreme Court of West Virginia
    • 14 Abril 1936
    ..."about December 4th tenderness, redness and swelling of the left hip joint was discovered." The witness continued: "This[185 S.E. 417]would indicate or did indicate the beginning of arthritis of the left hip joint and subsequently it was treated by the application of heat and......
  • Singleton v. State, No. 3-975A197
    • United States
    • Indiana Court of Appeals of Indiana
    • 21 Julio 1977
    ...Union Fire Ins. Co. v. Standard Drug Co. (1920), 121 Miss. 510, 83 So. 676, 11 A.L.R. 1321; State v. Simmons (1936), 117 W.Va. 326, 185 S.E. 417. Therefore the disqualification of the trial judge must be seasonably raised. If a complaining party sits idly by and awaits the outcome of the pr......
3 cases
  • State ex rel. Moats v. Janco, No. 12979
    • United States
    • Supreme Court of West Virginia
    • 16 Marzo 1971
    ...of Grafton case this Court said that the maxim remains inviolate in this State. In the criminal case of State v. Simmons, 117 W.Va. 326, 185 S.E. 417, the defendant was found guilty by a justice of the peace of the offense of operating a motor vehicle on a public highway while under the inf......
  • Frazier v. Grace Hosp. Inc, No. 8313.
    • United States
    • Supreme Court of West Virginia
    • 14 Abril 1936
    ..."about December 4th tenderness, redness and swelling of the left hip joint was discovered." The witness continued: "This[185 S.E. 417]would indicate or did indicate the beginning of arthritis of the left hip joint and subsequently it was treated by the application of heat and......
  • Singleton v. State, No. 3-975A197
    • United States
    • Indiana Court of Appeals of Indiana
    • 21 Julio 1977
    ...Union Fire Ins. Co. v. Standard Drug Co. (1920), 121 Miss. 510, 83 So. 676, 11 A.L.R. 1321; State v. Simmons (1936), 117 W.Va. 326, 185 S.E. 417. Therefore the disqualification of the trial judge must be seasonably raised. If a complaining party sits idly by and awaits the outcome of the pr......

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