State v. Tharp
| Decision Date | 30 October 1917 |
| Docket Number | 3080. |
| Citation | 94 S.E. 119,81 W.Va. 194 |
| Parties | STATE v. THARP. |
| Court | West Virginia Supreme Court |
Submitted October 23, 1917
Syllabus by the Court.
A person convicted of crime by a justice of the peace is entitled, as matter of right, to an appeal without giving bond or entering into a recognizance, provided he applies therefor within a reasonable time after conviction.
A justice of the peace cannot defeat the right of appeal by unreasonable delay in granting it, after application therefor has been duly made.
It is not indispensable that the prisoner should appear before the justice in person to demand an appeal.
The recognizance or appeal bond provided for by section 230, c 50, Code 1913 (sec. 2785), is essential to secure the release of the prisoner, pending the appeal, but it is not a prerequisite to the right of appeal.
Error from Circuit Court, Webster County.
Mathew Tharp was convicted of unlawfully carrying a pistol without a state license in violation of statute, his appeal was dismissed, and he brings error. Reversed, and case remanded for trial.
W. S. Wysong, J. M. Hoover, and J. S. Cogar, all of Webster Springs, for plaintiff in error.
E. T England, Atty. Gen., and Charles Ritchie, Asst. Atty. Gen for the State.
Defendant was, on the 10th day of July, 1915, tried by a justice of the peace of Webster county on a warrant charging him with unlawfully carrying a pistol about his person, without a state license, in violation of section 7, c. 148, Code (sec 5291), and found guilty and sentenced to pay a fine of $50, and serve a term of six months in the county jail, and to work on the county roads. Six days after the prisoner had been committed to jail he tendered to the justice an appeal bond with security and demanded an appeal. The justice delayed granting the appeal until the 28th of July to ascertain whether the sureties on the bond were sufficient, and being satisfied they were financially responsible, he on that day granted the appeal.
When the case was called for trial in the circuit court on the 15th of October, 1915, the prosecuting attorney moved to dismiss the appeal on the ground that it had been improvidently awarded, and defendant, by counsel, objected. The court sustained the motion and dismissed the appeal for the reason, as stated in the order, that the appeal had not been demanded on the day of trial, or until after defendant had been regularly committed to jail by the justice, and because the appeal was not granted until the 28th of July, 18 days after the trial, and remanded him to jail, and defendant seeks reversal of the judgment.
It appears from the transcript of the justice's docket that the justice received the appeal bond on the 16th day of July. It was by its very terms, an application for an appeal, and it was not indispensable for the prisoner to appear in person in...
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