82 W. Va. 224 | W. Va. | 1918
Upon two warrants charging him with a failure to require the attendance of his children at school, the defendant was found guilty before a justice of the peace, and upon one of said charges fined the sum of two dollars, and upon the other thereof the sum of five dollars, together with the costs of prosecution in each case. These warrants -were sworn out. under the provisions of section 72 of ch. 45 of the Code making it a misdemeanor for anyone having under his control a child of school age not to compel the attendance of such child at school under certain regulations, and providing a fine of two dollars for the first offense, and a fine of five dollars, for each subsequent offense. The defendant demanded that an appeal be allowed him from the judgments of the justice of the peace aforesaid, and under the provisions of section 230 of eh. 50 of the Code demanded that the justice of the peace make the fine in each case the sum of ten dollars, se that he might be entitled to said appeal. This, the justice of the peace refused to do and refused to giant to him an appeal. He thereupon filed his petition in the circuit court showing these facts and praying that an appeal from each of said judgments be granted him by the circuit court, and from that court’s refusal to grant the prayer of the petition this writ of error is prosecuted.
It will-be observed that section 72 of eh. 45 makes it a misdemeanor for anyone having in his charge or under his control children of school age not to send them to school, and provides as punishment for such failure a fine of two dollars. for the first offense, and five dollars for each subsequent offense. The contention of the state is that, inasmuch as tlm fine provided by the statute for the offense with which the-defendant is charged was in no case as much as ten dollars* the justice of the peace had no power to make the fine ten dollars upon the application of the defendant, and to grant to him an appeal under section 230 of eh. 50; that this section properly construed only provides for the granting of an appeal in those eases in which provision is made for punishment in excess of a fine of ten dollars by the statute creak-.
The judgment of the circuit court will, therefore, be reversed and the cause remanded, with directions to grant an appeal to the defendant in each case, to the end that he may be tried in the circuit court for the offense with which he is charged. Reversed and remanded, with directions.