State Ex Rel. Moats v. Janco ( 1971 )

Haymond, Judge:

This habeas corpus proceeding is here upon appeal by the petitioner, Howard William Moats, from the final judgment of the Circuit Court of Monongalia County rendered October 24, 1969, which refused to require the defendant, Joseph Janco, Sheriff of Monongalia County, to release the petitioner from the jail of Monongalia County where he was confined pursuant to a judgment of William M. Bowers, Justice of the Peace of Morgan District, Monongalia County, rendered October 18, 1969, which imposed upon the petitioner a fine of fifty dollars or imprisonment in the county jail for a period of thirty days.

This appeal was granted by this Court June 29, 1970, and was originally submitted for decision upon the record and the briefs and the oral arguments of the attorneys for the respective parties on September 15, 1970.

Upon the petition of the defendant a rehearing of the case was granted January 25, 1971, and upon the rehearing this proceeding was submitted for decision upon the record and the original briefs and additional briefs, and the oral arguments of the attorneys for the respective parties on February 16, 1971.

After the Circuit Court of Monongalia County refused to admit the petitioner to bail, this Court, in a separate original habeas corpus proceeding, by order entered October 28, 1969, directed the Circuit Court of Monongalia County to release the petitioner on his own recognizance in the amount of $100.-00 pending an application for an appeal in this proceeding and pursuant to the order of this Court the petitioner was released from custody October 29, 1969, after having served eleven days of the thirty day sentence imposed by the justice.

There is little, if any, dispute in the material facts disclosed by the record.

About 6:00 o’clock Friday evening, October 17, 1969, the petitioner was arrested by Trooper J. R. Rogers in Grant District of Monongalia County and was placed in the county jail in Morgantown until approximately 11:00 o’clock Saturday morning, October 18, 1969, when he was taken before William M. Bowers, Justice of the Peace of Morgan District,- and served with a warrant charging him with the offense of driving a vehicle on a highway of this State while under the influence of intoxicating liquor which, under Section 2c, Article 5, Chapter 17C, Code, 1931, as amended, is a misdemeanor for a first offense, and any person convicted of such offense shall be punished by imprisonment in the county jail for a period of not less than twenty-four hours nor more than six months and in addition to the mandatory jail sentence may be fined not less than fifty dollars nor more than one hundred dollars and the operator’s or chauffeur’s license of such person shall be revoked for a period of six months.

The justice read and explained the warrant to the petitioner who stated that he understood the offense and the sentence that could be imposed and when asked if he desired to plead guilty said that he did and entered a plea of guilty. Before entering the plea he was asked by the justice if he wanted an attorney and replied that he had no money and he was not provided with the assistance of an attorney for his defense. Upon the plea of guilty the justice imposed a sentence which was entered in his docket in this form: “The defendant is committed to the county jail for thirty days in lieu of fine and cost.” In his testimony, however, the justice stated with reference to that sentence: “I gave him a fine and costs of fifty dollars, or thirty days.” At the time of his arrest the petitioner was nineteen years of age, was indigent and unable to employ an attorney, had no money except a nickel in his possession, owned property consisting of his clothes and household articles of the value of fifty dollars and an automobile of the value of sixty dollars, was unemployed, lived in a one room house, with no inside water or toilet facilities, for which he paid ten dollars a month rent, and received as his only income one hundred and thirty eight dollars a month from public welfare.

The errors assigned and relied on by the petitioner for reversal are that upon his trial he was denied due process of law and equal protection of law because the justice of the peace (1) was without professional legal training and not licensed as an attorney; (2) was pecuniarily interested in the disposition of the case; (3) the petitioner was denied the assistance of counsel which as an indigent he was unable to employ; (4) was subjected to cruel and unusual punishment, excessive fine, and involuntary servitude because too poor to pay the fine and costs assessed against him; and (5) was sentenced to the county jail for thirty days in lieu of fine and costs, in violation of the statue which limits confinement to a period of ten days.

No appeal from the judgment of the justice of the peace has been applied for or granted and if it is a valid or voidable judgment, instead of a void judgment, it is in full force and effect and enforceable against the petitioner.

There is no merit in the contention of the petitioner that his conviction and sentence by the justice of the peace were violative of due process of law because the justice of the peace was without professional legal training and was not licensed as an attorney at law. Article VIII, Section 1, of the Constitution of this. State provides that “The judicial power of the State shall be vested in a supreme court of appeals, in circuit courts and the judges thereof, in such inferior tribunals as are herein authorized and in justices of the peace.” The office of justice of the peace in this jurisdiction is a judicial office. That office is established by Article VIII, Section 27, of the Constitution of this State, which provides that each county shall contain districts “not less than three nor more than ten in number, and as nearly equal as may be in territory and population”, that “There shall be elected in each district containing a population not exceeding twelve hundred, one justice of the peace, and if the population exceeds that number, two such justices shall be elected therein”, and that “Every justice shall reside in the district for which he was elected”. Article VIII, Section 28, of the Constitution of this State also provides that “The jurisdiction of justices of the peace shall extend throughout their county; they shall be conservators of the peace and have such jurisdiction and powers in criminal cases as may be prescribed by law.” See State ex rel. Ralich v. Millsop, 138 W.Va. 599, 76 S.E.2d 737.

Section 1, Article 18, Chapter 50, Code, 1931, as amended, confers criminal jurisdiction upon justices of the peace of the various offenses mentioned in the section; and Section 9, Article 19, Chapter 17C, Code, 1931, as amended, provides that justices of the peace shall have concurrent jurisdiction with the circuit, criminal and intermediate courts of the misdemeanors created by Chapter 17C, which include the offense of which the petitioner was convicted by the justice of the peace.

The Constitution prescribes no qualification for a justice of the peace except the requirement of Article. VIII, Section 27, that he must reside in the district for which he was elected and the requirement of Article IV, Section 4, that he must be a citizen entitled to vote; and there are no additional qualifications prescribed for a justice of the peace such as legal training or the status of a duly licensed attorney at law as contended by the petitioner. Though no person may engage in the practice of law unless he is a duly licensed attorney at law, a justice of the peace, in the trial and disposition of a case of which he has jurisdiction, is not engaged in the practice of law but instead acts in a judicial capacity and is engaged in the discharge of a judicial function. This Court has said that a commissioner of accounts of a county court is a county officer, that his qualifications are not prescribed by statute, State ex rel. Archer v. County Court of Wirt County, 150 W.Va. 260, 144 S.E.2d 791, that in the performance of his duties as commissioner he acts in a judicial capacity and is not engaged in the practice of law and that a person who is not an attorney at law may be appointed to that position. State ex rel. Thorn v. Luff, 154 W.Va. 350, 175 S.E.2d 472.

In view of the foregoing this Court holds that a duly elected justice of the peace who resides in the district for which he was elected is authorized and empowered to exercise within the county in which such district is located the jurisdiction conferred upon him by the Constitution and the statutes of this State; and his lack of professional legal training and his inability to attain the status of a duly licensed attorney at law do not of themselves render his judgment of conviction of a defendant of a criminal offense of which the justice has jurisdiction violative of the due process clauses of the Federal and State Constitutions.

There is likewise no merit in the contention of the petitioner that the justice of the peace was under pressure to convict the petitioner in order to favor the arresting officer because the failure of the justice to convict persons arrested and brought before him by the arresting officer would induce the arresting officer to take an accused before another justice and in that way decrease the income of the justice and cause him to lose this potential source of income and the foregoing situation produced a pecuniary interest in the justice which disqualified him from trying the petitioner and rendered void the judgment against the petitioner as violative of due process of law. There is no evidence in the record to indicate that the justice or the arresting officer, in the trial of the offense charged against the petitioner, engaged in any such practice or conduct. For that reason that question, not being properly presented for decision, is not considered or determined upon this appeal.

The compensation of a justice of the peace, which is derived from the fee system, is provided for by the statute law of this State.

Section 11, Article 17, Chapter 50, Code, 1931, as amended, provides, to the extent here pertinent, that “Every justice shall be entitled to a fee of four dollars in each criminal case and proceeding before him, which fee shall constitute his compensation for all official services performed by him in connection with any single case, including affidavit for warrant, search and seizure warrant, warrant for arrest, trial examination, issuing subpoenas and copies thereof, warrant summoning and swearing a jury when required, swearing and certifying attendance of witnesses, entering judgment and taxing costs and all other acts in connection herewith . . . except, that he shall be allowed an additional fee of fifty cents for making and certifying a transcript of his docket in any particular case and transmitting the same to the clerk of the circuit court, the State road commissioner, or any other office in which he may be by law required to certify such transcript, and two dollars for bond or recognizance, to be paid by defendant. And no other fees shall be taxed or charged by any justice in such cases and proceedings. * *

Section 4, Article 3, Chapter 17B, Code, 1931, as amended, provides, in part, that whenever a conviction is had in the court of a justice of the peace for the violation of any law of this State governing or regulating the licensing or operation of any motor vehicle, the justice shall transmit to the department of motor vehicles within seventy-two horn’s after such conviction a certified abstract of the judgment of such conviction. This requirement occurs only in case of conviction and unless the justice convicts an accused he does not obtain this fee. It may, therefore, properly be considered as an inducement to convict an accused which produces a pecuniary interest, although manifestly slight in each single case, and if charged or earned, results in his disqualification to try and convict the accused. The same comment applies to the provision of the statute which provides a fee of two dollars for bond or recognizance which occurs only in case of conviction of the accused, although in this instance no such fee was earned by the justice who did not permit the petitioner to be released on bail. These provisions allowing the fee of fifty cents and the fee of two dollars, to which the justice is entitled only in the event of the conviction of the accused, produce a pecuniary interest in the justice and are violative of the due process of law provisions of the Fifth and Fourteenth Amendments to the Constitution of the United States and Article III, Section 10, of the Constitution of this State, and as the fee for making the transcript was not waived by the justice, the judgment of conviction is null and void. Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 50 A.L.R. 1243; Doty v. Goodwin, 246 Ark. 149, 437 S.W.2d 233; State ex rel. Osborne v. Chinn, 146 W.Va. 610, 121 S.E.2d 610; Williams v. Brannen, 116 W. Va. 1, 178 S.E. 67.

In headnote 1 of the Tumey case there is this statement: “To subject a defendant to trial in a criminal case involving his liberty or property before a judge having a direct, personal, substantial interest in convicting him is a denial of due process of law.” In the opinion in that case, which was prepared by Chief Justice Taft, are these expressions: “All questions of judicial qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion. Wheeling v. Black, 25 W.Va. 266, 270. But it certainly violates the Fourteenth Amendment, arid deprives a defendant in a criminal case of due process of law, to subject his liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case” and “Every procedure which would offer a possible temptation to the average man as a fudge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.”

In the Doty case, a prosecution for reckless driving, the Supreme Court of Arkansas held that liability of the defendant, if convicted, for the fees of the justice of the peace constituted a denial of due process under the rule that a judge in a criminal case must not have a pecuniary interest in convicting the accused.

In the Osborne case, in which the writ of prohibition was awarded against the justice because of his pecuniary interest in a criminal case pending before him, this Court held that an act of the Legislature, Chapter 71, Acts of the Legislature, Regular Session, 1961, which provided that the salaries of justices of the peace should be payable solely out .of a special justice’s account which consisted of fines, fees, costs and other money obtained from cases tried by the justice, and placed in the general county fund, was violative of the due process clauses of the Federal and State Constitutions and was unconstitutional. Points 1 and 3 of the syllabus in that case are couched in this language: “Where a justicé of the peace has any pecuniary interest in any case to be tried by him, however remote, he is disqualified from trying such case” and “The common law principle which remains today in full force and effect in this state that no man can be judge of his own case applies as well to a case in which a judge or magistrate is interested as to one in which he is a party.”

In the Williams case, also a proceeding in prohibition, this Court held unconstitutional certain provisions of Section 14, Article 17, Chapter 50, and Section 15, Article 5, Chapter 7, Code, 1931, then in effect and which, before their amendment by the statutes now in force and effect, created only two sources of compensation for a justice in misdemeanor cases. These were costs paid by the accused when convicted and the fund accumulated in the hands of the sheriff from fines assessed by the justices. The Court recognized and applied the maxim that no man can be a judge of his own case and said in point 1 of the syllabus that the maxim applied to a case in which a judge or a justice of the peace is interested as well as to one to which he is a party.

Under the foregoing authorities it is clear that a justice of the peace is disqualified from acting in a criminal case in which he has a pecuniary interest, however remote, and that a judgment of conviction rendered by him in such case is void because violative of the due process clauses of the Federal and State Constitutions.

This Court has said in several cases, among them City of Grafton v. Holt, 58 W.Va. 182, 52 S.E. 21, 6 Ann. Cas. 403; Forest Coal Company v. Doolittle, 54 W.Va. 210, 46 S.E. 238; and Findley v. Smith, 42 W.Va. 299, 26 S.E. 370, that a judgment rendered by a judge who is disqualified by reason of his interest, is voidable, not void, where the disqualification is not statutory but rests upon the common law, although that distinction is criticized in the opinion in the Forest Coal Company case. In the City of Grafton case and the Forest Coal Company case, a writ was awarded prohibiting the interested judge from proceeding in the case, and in the Findley case a decree entered by the interested judge was reversed on appeal. Each of those cases was a civil suit or action and did not involve the personal freedom of an accused who seeks relief in a habeas corpus proceeding from a void judgment, as here, or any fee as compensation for the judge, and for those reasons they are distinguishable from the decision in the case at bar. In the City of Grafton and Forest Coal Company cases the maxim “nemo debet esse judex in propria causa”, meaning “no man ought to be a judge in his own cause” was recognized and applied. In the Findley case this Court said that the maxim was a fundamental rule that must be held sacred; and in the City of Grafton case this Court said that the maxim remains inviolate in this State.

In the criminal case of State v. Simmons, 117 W.Va. 326, 185 S.E. 417, the defendant was found guilty by a justice of the peace of the offense of operating a motor vehicle on a public highway while under the influence of intoxicating liquor and his conviction was affirmed by the circuit court on appeal. The case was tried by the justice before repeal of statutes relating to the compensation of justices which were held to be unconstitutional in Williams v. Brannen, 116 W.Va. 1, 178 S.E. 67, and this Court held, under the particular facts of the Simmons case that the failure of the defendant to raise the question of the disqualification of the justice because of the unconstitutional method provided for the payment of fees by the prior statutes constituted a waiver of the disqualification of the justice. The statement in the opinion in that case, upon the authority of the civil case of City of Grafton v. Holt, 58 W.Va. 182, 52 S.E. 21, 6 Ann. Cas. 403, that “The action of a judicial officer who was disqualified by personal interest is voidable, not void,” is expressly disapproved.

The provision of Section 11, Article 17, Chapter 50, Code, 1931, as amended, which allows a justice of the peace a fee of four dollars in each criminal case as compensation for all official services performed by him in any single case, including his specified incidental services, and the provision of Section 15, Article 5, Chapter 7, Code, 1931, as amended, which authorizes the payment of the fee of four dollars from the general school fund or the general county fund by order of the county court on the sheriff are constitutional and valid. The funds from which the fee of the justice is payable contains moneys produced by tax levies instead of from a special fund derived from fees and costs, collected by the justice and his fee is not payable exclusively from fees and fines collected by the justices, such as the special funds held to be invalid in the Williams and Osborne cases. The foregoing statutory provisions insure the payment of the fee of the justice and its payment, not being dependent upon either the conviction or the acquittal of the defendant, does not produce an interest which disqualifies the justice from acting in criminal cases of which he has jurisdiction. The controlling distinction between the payment of the fee of the justice involved in the Williams and Osborne cases and the fee of the justice involved in this case is, as indicated in the quotation from Dugan v. Ohio, 227 U.S. 61, 48 S. Ct. 439, 72 L. Ed. 784 in the opinion in the Williams case, that the justice (there the mayor) “receives his salary in any event, whether he convicts or acquits.”

It follows that the allowance of the fee of four dollars to a justice of the peace, under Section 11, Article 17, Chapter 50, Code, 1931, as amended, and its payment as provided in Section 15, Article 5, Chapter 7, Code, 1931, as amended, not being dependent upon conviction or acquittal of the defendant, do not produce a pecuniary interest which will disqualify the justice from acting in a case of which he has jurisdiction. It is equally obvious, however, that the provision of Section 11, Article 17, Chapter 50, Code, 1931, as amended, which allows a justice a fee of fifty cents for preparing a transcript and a fee of two dollars for bond or recognizance mentioned in the section, being dependent upon the conviction of the defendant in a criminal case, is unconstitutional in that it produces a pecuniary interest in the justice which, if either fee is charged or such fees, if earned, are hot waived by the justice, disqualifies him from acting in the case and renders his judgment of conviction of the defendant void because violative of due process of law.

The sentence imposed by the justice of the peace of a fine of fifty dollars or thirty days in jail, though irregular, was not of itself entirely invalid and would have been a valid sentence of imprisonment of thirty days but for the disqualification of the justice because of his pecuniary interest. The justice was without authority to impose a fine alone because the statute makes mandatory the sentence of imprisonment of at least twenty-four hours but not more than six months. The sentence of a fine, unless imposed as punishment in addition to imprisonment, was void because unauthorized by the statute, State ex rel. Boner v. Boles, 148 W.Va. 802, 137 S.E.2d 418; State ex rel. Browning v. Tucker, 142 W.Va. 830, 98 S.E.2d 740. The sentence of thirty days, however, being within the period of imprisonment authorized by the statute, would have heen a valid sentence if the justice had not been disqualified to act. The sentence of thirty days was not imposed for the nonpayment of the invalid fine of fifty dollars and was not violative of Section 9, Article 18, Chapter 50, Code, 1931, which limits imprisonment for that cause to a period of ten days or for any other reason.

The judgment of conviction entered by the justice is void in the particulars heretofore indicated and it may be and is attacked and held to be unenforceable in this habeas corpus proceeding. State ex rel. Widmyer v. Boles, 150 W.Va. 109, 144 S.E.2d 322. “A void judgment, being a nullity, may be attacked, collaterally or directly, at any time and in any court whenever any claim or right is asserted under such judgment.” Point 3, syllabus, State ex rel. Bradley v. Johnson, 152 W.Va. 655, 166 S.E.2d 137; State ex rel. Boner v. Boles, 148 W.Va. 802, 137 S.E.2d 418; State ex rel. Browning v. Tucker, 142 W.Va. 830, 98 S.E.2d 740, and the many cases cited in the opinion in that case.

Since Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R.2d 733, decided March 18, 1963, it is well established that a person prosecuted for a felony in a state court, who is unable to employ counsel and who does not waive his right to the assistance of counsel, is entitled to the appointment of counsel for his defense. Because of statements in the opinion in the Gideon case, such as “reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him”, there has been rather widespread belief that the decision applied to some or all misdemeanors and placed them within the scope of the right to the assistance of counsel guaranteed by the Sixth Amendment to the Constitution of the United States. The subsequent refusal of the Supreme Court to review certain recent cases, among them Winters v. Beck, 239 Ark. 1151, 397 S.W.2d 364, certiorari denied, 385 U.S. 907, 87 S. Ct. 207, 17 L. Ed. 2d 137 and State v. DeJoseph, 3 Conn. Cir. 624, 222 A.2d 752, certiorari denied, 385 U.S. 982, 87 S. Ct. 526, 17 L. Ed. 2d 443, in each of which the question of the right of the accused to the assistance of appointed counsel in prosecutions for misdemeanors in state courts was involved, indicates that the decision in the Gideon case may not apply to prosecutions for misdemeanors.

In the absence of a decision of the Supreme Court of the United States on this specific question of the constitutional right of a defendant in a prosecution for a misdemeanor to the assistance of counsel, there are conflicts and some confusion in the decisions of the courts in the various jurisdictions on that point. Some federal court decisions, following the holding in Gideon, have held that the defendant is entitled to the assistance of counsel for his defense in misdemeanor prosecutions. James v. Headley, 410 F.2d 325, (5th Cir.); McDonald v. Moore, 353 F.2d 106, (5th Cir.); Harvey v. State of Mississippi, 340 F.2d 263, (5th Cir.); Evans v. Rives, 126 F.2d 633 (D.C. Cir.). In State v. Borst, 278 Minn. 388, 154 N.W.2d 888, the Supreme Court of Minnesota held that in the trial of a misdemeanor in which the court may impose a sentence in a penal institution or a jail the defendant who is unable to procure counsel in his own behalf is entitled to have counsel appointed to represent him. In State ex rel. Argersinger v. Hamlin, (Fla.), 236 So. 2d 442, the Supreme Court of Florida, recognizing the classification of offenses as petty and serious, held that where it appears that the maximum term of imprisonment provided by statute for the offense charged against the defendant was six months and that he was actually sentenced to three months he was not entitled to court appointed counsel. In the habeas corpus proceeding of In Re Johnson, 42 Cal. Rptr. 228, 398 P.2d 420, the Supreme Court of California held that under the provisions of the Constitution of that State, the petitioner, who on his pleas of guilty had been convicted of misdemeanors consisting of traffic offenses, was entitled to the assistance of counsel at all stages of the proceedings.

In the absence of a decision of the Supreme Court of the United States upon the question, in view of the conflicting decisions in the various jurisdictions, and inasmuch as a decision with respect to the right of the petitioner to the assistance of counsel to represent him in the criminal proceeding before the justice of the peace is unnecessary in the decision of this proceeding, that question is not considered or determined, and no opinion is entertained or expressed upon that question.

The final judgment of the circuit court rendered October 24, 1969, dismissing this proceeding, is reversed and set aside, and this proceeding is remanded to that court with directions that the petitioner be released from any confinement by the defendant and that the recognizance heretofore required of the petitioner be cancelled and discharged.

As a general rule, when a rehearing is granted, the status of the case is the same as though no hearing had occurred. 3 Am. Jur., Appeal and Error, Section 810. The granting of a rehearing withdraws an opinion previously rendered and destroys its force and effect unless it is subsequently adopted by the same tribunal. 3 Am. Jur., Appeal and Error, Sections 809 and 811; Atlantic Greyhound Corporation v. Public Service Commission of West Virginia, 132 W.Va. 650, 54 S.E.2d 169. By reason of the rehearing heretofore granted the majority opinion and the dissenting opinions heretofore filed in this case are withdrawn and held for naught.

Reversed and remanded with directions.