124 Va. 805 | Va. | 1919
delivered the opinion of the court.
By an act of the General Assembly, approved March 5, 1900, entitled “an act for the protection of farmers, etc., in Buckingham county, by requiring licenses of labor agents, and imposing penalties for violation” (Acts 1899-1900, page 868), the board of supervisors of Buckingham county was authorized and empowered to place a license tax upon all labor agents coming into the county for the purpose of inducing local laborers to go elsewhere. The provision prescribing penalties for violation of the act was as follows: “Any agent or representative found in any part of the county soliciting men to leave said county for the purpose heretofore stated, without having in his possession license or receipt showing that license has been paid, shall be deemed guilty of a misdemeanor, and punished, on conviction, by fine of not less than fifty nor more than one hundred dollars in each case.”
Jno. H. Perrow was convicted and fined $75.00 upon a warrant issued by a justice of the peace of Buckingham county, charging him with “soliciting labor illegally and contrary to” the act above recited. He appealed to the circuit court, and that court, being of opinion that the statute was unconstitutional and void, quashed and dismissed the warrant. To that judgment, upon an application in the name of the Commonwealth, this writ of error was awarded.
It is conceded that the right of appeal is in terms conferred by section 4052 of the Code, providing for an appeal on behalf of the Commonwealth, not only in all cases for the violation of a law relating to the State revenue, but also in all cases for the violation of a law which has been declared to be unconstitutional by the judgment of a circuit or corporation court; but it is contended that this section of the Code, except as to revenue cases, is itself unconstitutional and void.
[2, 8, 4] Prior to the adoption of the Constitution of 1902, there was no express or implied constitutional inhibition upon the right of appeal to the Commonwealth, and as the subject was then controlled entirely by the common law, there was no legal reason why the legislature might not, by express statute, have allowed the State a writ of error in any criminal case. The provision in the Constitution of the United States (amendment 5) that no person shall be liable to be put twice in jeopardy of life or limb for the same offense, which is construed to deny the government the right of appeal in criminal cases, applies only to the federal courts and not to the courts of the several States. See the very interesting discussion of this subject in a note by Judge M. P. Burks in 6 Virginia Law Register, page 244. Section 8898 of the Code, providing immunity against ,a second trial for the same offense, speaks only of cases in which there has first been an acquittal “by the jury upon the facts and merits,” and does not, in terms at least, apply to the instant case, where no jury was sworn. That section is discussed by Judge Burks in the note mentioned, and he shows that the cases cited thereunder in the Code do not raise or decide the question now under consideration.
In the case of Commonwealth v. Willcox, 111 Va. 849, 69 S. E. 1027, it was held that under the,provision of section 88, quoted above, a writ of error does not lie upon the petition of the Commonwealth in any case involving the life or liberty of a person where no question touching the State revenue is involved, and hence that so much of section 4052 of the Code as provides for a writ of error at the instance of the Commonwealth in a case merely involving the violation of a law declared to be unconstitutional, is itself null and void. The case at bar, however, is not expressly covered by the Willeox Case, because the offense with which Willeox was charged was one involving his liberty, and therefore came clearly within the terms of section 88 of the Constitution upon which the decision turned, while the offense with which Perrow is here charged is punishable by fine only, and does not directly imperil his liberty. (Forbes v. State Council, 107 Va. 858, 859, 60 S. E. 81.) Section 88 expressly confers the right of appeal in all revenue cases, regardless of the form or degree of punishment, and expressly denies it in all other than revenue cases where the penalty is such as to involve life or liberty, thus leaving the legislature, so far as this particular section of the Constitution is concerned, a free hand with reference
The avowed purpose of the appeal sought in the instant case is to obtain a reversal of the judgment, to the end that the accused may be again brought to trial; and no appeal lies for this purpose if the rule against a second jeopardy applies to the case.
In the case of Jones v. State, 15 Ark. 261, it is held that where a defendant indicted for a misdemeanor, punishable by fine only, has been tried and acquitted and the judgment reversed on appeal, he may be tried again without any violation t of the Arkansas Constitution, which provides “that no person shall, for the same offense, be put twice in jeopardy of life or limb.”
And in State v. Spear, 6 Mo. 644, a case of indictment for misdemeanor, punishable by both fine and imprisonment, Napton, J., delivering the opinion of the Supreme Court of Missouri, said: “I hold that the verdict of acquittal is a complete protection to the defendant against any further proceedings. The Constitution declares (article 13, section 10) that no person, after having been once acquitted by a jury, can, for the same offense, again be put in jeopardy of life or limb. By this provision, I understand that in all criminal prosecutions where a conviction would subject him to capital punishment, or would render him liable to be restrained from his personal liberty, an acquittal by a jury is a complete bar to any subsequent trial.”
It seems from the cases cited that the Arkansas and Missouri courts would apply the doctrine of former jeopardy to all misdemeanors for which the punishment might mean an imprisonment, and would deny it in all misdemean- or cases where the punishment consisted only of a fine. But it will be observed that in both States the offenses cov
On the other hand, in McCauley v. State, 26 Ala. 135, 144, the Alabama Supreme Court holds that “any discharge of the jury which would protect a person indicted for a capital offense from a subsequent trial, will work the same result in favor of a person indicted for a misdemeanor; that in this respect there is no middle ground—no difference between a capital case and a case of misdemeanor, as the Constitution guarantees the right of trial by jury ‘in all criminal prosecutions.’ ” This was a case in which the accused was charged with unlawful gaming. The report does not show, and we. are not otherwise informed, what was the prescribed penalty, but the phrase “all criminal cases” is broad enough to cover all misdemeanors. The case involved the effect of discharging a jury after the defendant had been put- to his trial upon a plea of not guilty, and the doctrine of former jeopardy was directly involved.
In Brink v. State, 18 Tex. App. 344, 51 Am. Rep. 317, where the charge against the accused was that he had sold a cigar on Sunday, it was held that his plea of former jeopardy for the same offense should have been sustained.
But whatever view may prevail in other jurisdictions, we are of opinion that in this State the rule against putting any person in jeopardy more than one time for the same offense is to be applied in all criminal cases—regardless of the character and degree of the punishment.
In Jones’ Case, 20 Gratt. (61 Va.) 848, 853, Moncure, P., delivering the opinion of the court, said: “The ground on which the view of the counsel for the plaintiff in error rests is a provision of the Constitution of the United States, which is in these words:- ‘Nor shall any person be subject, for the same offense, to be twice put in jeopardy of
“This provision of the federal Constitution applies, as such, only to the courts of the United States, and not to the courts of the several States; though it has been repeated, in effect if not in words, in some of the State Constitutions —but not in that of Virginia. The common law maxim, however, on which this constitutional provision is supposed to be founded does exist in Virginia, and seems to go even farther than that provision. For while that is confined, in terms, to cases involving ‘life or limb,’ the maxim extends t© all criminal cases."
And in Day’s Case, 23 Gratt. (64 Va.) 915, this court applied the doctrine of former jeopardy to an offense which consisted of a violation of the gaming statute then in force, and which was punishable only by a fine.
It is true that both the Jones Case and the Day Case were decided long before there was in Virginia any constitutional guarantee against a second jeopardy, but it will be observed that both of these eases use substantially the same language in announcing and applying the common law immunity against a second trial for the same offense as is found in our present Constitution; and we are of opinion that this language, as now embodied in section 8, was intended to cover all criminal cases.
In 12 Cyc., page 84, it is stated: “As a general rule, the State has no right to a writ of error or an appeal from a judgment in favor of a defendant, whether upon a verdict of acquittal or upon the determination by the court of a question of law, unless it be expressly conferred by statute in the plainest and most unequivocal terms.”
In United States v. Sanges, 114 U. S. 810, 12 Sup. Ct. 609, 36 L. Ed. 445, the court said: “A State has no right to a writ of error upon a judgment in favor of the defendant in a criminal ease, except under and in accordance with express statutes, whether that judgment was rendered upon a verdict of acquittal or upon the determination by a court of a question of law.”
We are of opinion that the motion to dismiss the writ of error must be sustained.
Dismissed'.