Town of Hartford v. Davis

• Decision Date: 15 October 1929
• Docket Number: 5912.
• Citation: 150 S.E. 141,107 W.Va. 693
• Parties: TOWN OF HARTFORD v. DAVIS.
• Court: West Virginia Supreme Court

150 S.E. 141

107 W.Va. 693

TOWN OF HARTFORD v. DAVIS.

No. 5912.

Supreme Court of Appeals of West Virginia.

October 15, 1929

Submitted October 8, 1929

Syllabus by the Court.

A warrant charging "reckless driving" is fatally defective on its face because it does not charge an offense against a definite provision of law.

The defendant to such warrant, when arrested and arraigned thereunder, does not waive the defect therein by entering upon trial after motion to quash had been overruled.

Appeal from Circuit Court, Mason County.

C. F Davis was convicted of reckless driving in violation of an ordinance of the Town of Hartford, and he brings error. Reversed and rendered.

Hogg & Hogg, of Point Pleasant, for plaintiff in error.

Somerville & Somerville, of Point Pleasant, for defendant in error.

MAXWELL J.

Upon appeal from a judgment of the mayor of the town of Hartford in Mason county upon a warrant, the plaintiff in error was likewise adjudged guilty by the circuit court of said county. To the judgment of the circuit court he prosecutes this writ of error.

The sole accusation of the warrant under which the prosecution is made is that the defendant "on the 24th day of June 1925, was guilty of reckless driving within the corporate limits of the Town of Hartford, Mason County, West Virginia." Both the mayor and the circuit court overruled the motion of the plaintiff in error to quash the warrant. It appears from the evidence that the specific charge against the defendant was that he was driving an automobile on a street of the said town at a greater rate of speed than 15 miles per hour, which is the maximum speed limit fixed by ordinance of the said municipality. It is a basic principle of criminal procedure that a warrant must clearly and specifically charge an offense against a definite provision of law, whether it be of a municipal ordinance, a statute, or the common law. "Apart from any special statutory or constitutional provision it is generally held that a warrant is insufficient and void if on its face it fails to contain a charge of any crime or offense known to the law." 2 R. C. L. 459. See, also, State v. Harr, 77 W.Va. 637, 88 S.E. 44; State v Emsweller, 78 W.Va. 214, 88 S.E. 787; State v Harless, 105 W.Va. 480, 143 S.E. 151. This warrant does not charge an offense. "Reckless driving" is not made an offense by the traffic ordinances of the town of Hartford, and, even if the ordinance did undertake to specify "reckless driving" as an offense, it would be too general for enforcement, and void for uncertainty. State v. Lantz, 90 W.Va. 738, 111 S.E. 766, 26 A. L. R. 894.

Plaintiff in error, by entering a plea of not guilty and standing trial, did not waive the benefit of his motion to quash the warrant. The cases cited on behalf of the town, in support of the contention that his defense on the merits operated as a waiver of his objections to the sufficiency of the warrant are civil cases declaring, in effect, that a defendant who enters general appearance, and goes to trial in a civil action before a justice of the peace, where there is jurisdiction of the subject-matter, after his motion to quash the writ has been overruled, thereby waives the defect and submits himself to the jurisdiction. Layne v. Ohio River Ry. Co., 35 W.Va. 438, 14 S.E. 123; Kyle v. Railroad, 49 W.Va. 296, 38 S.E. 489. That principle, of course, cannot be applied to a criminal case wherein a defendant is brought into court against his will and placed on trial. In a civil case he may attend or not. In a criminal action, where he is held under a...