139 S.E. 474 | W. Va. | 1927
This writ of habeas corpus is invoked by the petition of James P. Mount to the discharge from the custody of Emery Quinlan, keeper of the city jail of the municipality of the City of Huntington, his minor son, Clovis Mount.
From the petition for the writ, the return of the respondent to the writ, and agreed statement of facts, it appears that Clovis Mount was arrested by a policeman in the City of Huntington on August 27, 1927, without a warrant, and was taken before the police court where he was charged with the offense of driving a motor vehicle upon the streets of the city while being intoxicated, said charge being reduced to writing and entered upon the police register. Whether the arrest was made while the offense was being committed does not clearly appear. He was arraigned on said charge on August 29th, tried upon his plea of not guilty, found guilty, and was sentenced to pay a fine of $100.00 and to be confined for thirty days in the city jail. He was immediately committed to the jail and is now confined there. He has not *120 paid nor offered to pay the fine imposed. The city ordinance under which he was arrested, tried, convicted and sentenced, provides that, "No person shall drive or operate any vehicle, motor driven or otherwise, upon any street, alley, avenue, road or boulevard of the city, when intoxicated or under the influence of liquor, drugs or narcotics." The penalty for violation subjects the offender to "a fine of not less than $25.00 nor more than $100.00 or imprisonment in the city jail of not less than 10 days, and not more than 30 days, at the discretion of the Police Judge."
Neither counsel for petitioner nor counsel for respondent have favored the court with a brief. The petitioner charges that his son is illegally detained, that the police judge had no jurisdiction to try the case; while respondent says the court had jurisdiction, and the detention is lawful. They agree upon the facts above stated, and submit the case without briefs or oral argument.
On the proposition that Clovis Mount was arrested and tried without a warrant, and therefore the court had no jurisdiction, we find that the pleadings and agreed statement do not negative the fact that he was arrested while in commission of the offense. A police officer in his municipality has the right to arrest without warrant for an offense committed in his presence. State v. Long,
Under the charter of the city, and the ordinance referred to, the police court had jurisdiction to hear the case and inflict the punishment authorized and directed by the ordinance. Is the judgment and sentence authorized by the ordinance? The sentence imposes a fine and imprisonment; whereas, the ordinance authorizes a fine or imprisonment. If the sentence was severable as in Ex parte Mooney,
*122Prisoner discharged from custody.