O'uunnell v. Shipman

• Decision Date: 31 January 1933
• Docket Number: No. 7556.,7556.
• Citation: 167 S.E. 700
• Court: West Virginia Supreme Court
• Parties: O'UUNNELL. v. SHIPMAN, Judge, et al.

167 S.E. 700

O'UUNNELL.

v.SHIPMAN, Judge, et al.

No. 7556.

Supreme Court of Appeals of West Virginia.

Jan. 31, 1933.

Syllabus by the Court.

Mandamus will not ordinarily lie to compel a trial court to reinstate a criminal case and enter judgment on a verdict of guilty which verdict had been set aside and the case dismissed by the trial court for an insufficient reason.

Original proceedings in mandamus by Martha O'Donnell against the Honorable James F. Shipman, Judge, etc., and others.

Writ of mandamus refused.

O. J. Hill and I. M. Underwood, both of Middlebourne, for relator.

R. E. Bills and W. H. Carter, both of Par-kersburg, for respondents.

MAXWELL, President.

On complaint of Martha O'Donnell, the relator, her husband, Harold O'Donnell, respondent, was convicted of nonsupport by a justice of the peace of Tyler county. Upon appeal to the circuit court, the defendant was found guilty by a jury. Thereupon, respondent, the Honorable James F. Shipman, judge of said court, sustained a motion of the defendant in arrest of judgment, set aside the verdict, dismissed the case, and discharged the defendant from further prosecution under the warrant because, as recited by the court in its order, "the complaint in said case does not allege that the offense was committed in Tyler County."

The purpose of this proceeding is to require the circuit judge to reinstate the said case upon the docket of the circuit court of Tyler county and to render judgment upon the verdict of the jury as provided by law.

We are of opinion that the fact that the venue of the offense was not laid in the complaint upon which the warrant was based was not sufficient reason to justify the trial court in sustaining a motion in arrest of judgment and dismissing the proceeding. A justice has jurisdiction to try on its merits a charge of nonsupport. Code 1931, 4S-8-3. A warrant for an offense of which a justice has jurisdiction to render judgment stands in the place of an indictment. State v. Harr, 77 W. Va. 637, 88 S. E. 44; 22 Ency. Pl. & Pr., page 1984. Viewing such warrant as an indictment, What boots it whether the complaint upon which the warrant is predicated correctly avers the venue or not where the warrant, as in the case under consideration, does correctly lay the venue?

Where an indictment is involved, the question of the sufficiency of averment of venue must be determined from the face of the indictment itself. In reason the same rule must apply to a warrant which stands in the place of an indictment.

We think, too, that there is much reason in the...