28 W. Va. 372 | W. Va. | 1886
On October 13, 1886, A. V. Slack was indicted in the circuit court of Pleasants county for selling spirituous liquors contrary to law. The court directed a summons to issue against the defendant to answer the indictment. The summons was.served by delivering a copy thereof to the wife of the defendant. The defendant did not appear to answer said indictment. On March 8, 1886, the following order was entered in the case: “This day came the attorney for the State, and it appearing to the court, that the defendant A. V. Slack has been duly summoned in this case and failing to appear, answer or plead to same, then comes a jury to-wit,” naming the jurors. The jury was sworn to try “whether or not the said defendant is guilty as in the said indictment agaiust him is alleged and a true verdict render according to the evidence.” Thejury returned a verdict of “guilty,” “whereupon the court assessed his fine at $20.00; it is therefore considered by the court that the State of West Virginia recover of the defendant the aforesaid sum of $20.00 fine and her costs about her prosecution in this behalf expended.” The defendant made no motion in the court below under ch. 134 of the Code to have the judgment reversed but applied to this Court for a writ of error, which was granted.
The Attorney-General moves to dismiss the writ of error as improvidently granted insisting that the said judgment was rendered by default, and that no motion was made in the court below as authorized by see. 5 of ch. 134 of the Code. This motion is here resisted by counsel for plaintifi
It is true that in the above case the judge said: “The term judgment by default applies strictly and technically to actions at common law only.” Yet we must remember that at that time no judgment by default could be rendered in a misdemeanor case. Now such judgment is provided for. Sec. 20, ch. 158 of the Code. Whether that act is constitutional or otherwise will not now be considered.
, I think the legislature had another object in enacting ch. 134, and that was to prevent needless trouble to the Appellate Coui’t and to do justice to the court rendering the judgment. Where there has been no appearance by the-defendant, of course thq errors, that appear in the record, have not' been pointed out to the court, and it is simple justice to the circuit court in such a case to give it an opportunity upon-the error being pointed out to pass upon the question, before it can be taken to the Appellate Court.
Does ch. 134 apply to a judgment for a fine in a misdemeanor case ? Certainly the same reasons apply to such a
The writ of error is dismissed as improvidently awarded.
Dismissed.