Citation Numbers: 74 W. Va. 529
Judges: Miller
Filed Date: 6/16/1914
Status: Precedential
Modified Date: 9/9/2022
On the warrant of a justice petitioner was found guilty of unlawfully carrying about his person a revolver, without having obtained a license therefor, as provided by section-7, chapter 148, serial section 5291, Code 1913, and adjudged
Conceiving himself unlawfully deprived of his liberty by this judgment petitioner sought discharge on writ of habeas corpus, which the judgment of the circuit court denied him, and that judgment is presented here for review on this writ of error.
The statute referred to, amended by chapter 51, Acts 1909, now makes the first offense a misdemeanor, punishable as the judgment of the justice complained of provides; the second, a felony, and provides that if the charge made be for the second offense it shall be so stated in the indictment.
It is claimed by counsel for petitioner that he could only be tried and convicted of either of these offenses upon an indictment by a grand jury; that by the amendment the jurisdiction of justices is now limited to a preliminary examination, and, if a prima facie case is shown, to send it on to the circuit court for indictment by the grand, jury.
It is conceded by petitioner that section 219, chapter 50, serial section 2773, Code 1913, by sub-section 6 thereof, in terms, gives justices jurisdiction of violations of said section 7, and it is conceded by the Attorney General, that since the amendment of that section by the Act of 1909, justices have no jurisdiction of second offenses, made felonies by said amendment. But for the State it is affirmed that justices now, as before the amendment, have jurisdiction of first offenses, which by the amendment remain .misdemeanors.
The sole question then is, does the amendment of said section 7, by implication, repeal entirely section 219, chapter 50, of the Code, so as to take away all jurisdiction of justices over the offenses prescribed? As stated, the Attorney General concedes that it does so as to second, but not as to first offenses which are still misdemeanors.
In support of the proposition that justices have no jurisdiction of either class of offenses, certain other provisions of section 7, as amended, are appealed to. First, the provision of the first paragraph that “it shall be the duty of the prosecuting attorney in all cases to ascertain whether or not the charge made by the grand jury is the first or second offense, and if it shall be the second offense it shall be so stated in
The first part of this paragraph excepts certain persons from the provisions of the statute, namely, those carrying weapons in good faith and not for felonious purposes on his own premises, or from the place of purchase to his home, place of residence, place of repair and back, and persons who in ease of riot, public danger and emergency may be authorized by a justice of the peace or other person, to execute process, &e. It is with respect to persons defending under such authority that the first provisions of the paragraph relate.
Do these provisions plainly imply repeal of said section 219 ? That the jurisdiction of justices before the amendment was concurrent with that of the circuit court upon indictments is patent from all provisions of the law pertaining to the subject. That said section 219, conferring jurisdiction on justices of offences arising under said section 7, was intended to facilitate the execution of the law and make it more effective in all parts of the country, is plainly manifest. Now' did the Legislature by the ■ amendment plainly intend repeal of said section 219, so as to take away entirely all jurisdiction of justices? It is a well established rule of construction that repeals by implication are not favored; and as a general rule a statute will not be regarded as repealed by
It is suggested in the brief of petitioner’s counsel, on the theory of a repeal of said section 219, that by the judgment of the justice petitioner has been deprived of certain constitutional rights prescribed by sections 6, 9 and 14, of Article III, of our Constitution, our Bill of Bights. It is conceded, however, that it is within legislative authority, given or implied by section 4, of said Article III, to confer on justices of
For the foregoing reasons we see no' error in the judgment complained of, and are of opinion that it must be affirmed. Judgment affirmed.
Affirmed.