CHARLESTON.

#### State *v.*Rupert Christian

(No. 5548)

Submitted April 27, 1926.

Decided May 4, 1926.

1. Criminal Law.

A bill of exceptions not signed by the trial judge cannot be considered by the appellate court, (p. 580.)

(Criminal Law, 17 C. J. § 3428.)

2. *Same*— Though *Transcript of Justice’s Docket Shows Accused Was Tried and Convicted on Warrant Charging Offense, Where Record Shows Trial in Circuit Court on Warrant Not Charging Any Offense, Motion in Arrest.of Judgment Should be Sustained (Code, o. 32a,*§§ *31, 37; Id. c. 50,\*§ *230).*

On the trial of an appeal from a judgment of a justice of the peace, though the transcript of the justice’s docket shows that the accused was tried and convicted before him on a warrant charging him with an offense, where it appears from the record that the defendant was tried in the circuit court o.n a warrant not charging him with any offense, his motion in arrest of judgment should be sustained, (p. 580.) (Criminal Law, 16 C. J. § 702 [Anno].)

(Note : Parenthetical references by Editors, C. J. — Cyc. Not part of syllabi.)

Error to Circuit Court, Wyoming County.

Rupert Christian was convicted for transporting moonshine liquor, and he brings error.

*Judgment reversed; verdict set aside; defendant discharged.*

*J. Albert Toler,*for plaintiff in error.

*Jlotvard B. Lee,*Attorney General, and *J. Luther Wolfe,*Assistant Attorney General, for the State.

MilleR, Judge:

Upon his appeal from a judgment of a justice of the peace, the defendant was tried in the circuit court and found guilty as charged in the warrant upon which he was tried on said appeal.

*580Tlie first point raised by counsel for tbe State on tbis writ of error is that tbe transcript of tbe evidence is not signed by tbe trial judge. An inspection of the record reveals tbis to be tbe fact, and we cannot, therefore consider tbe evidence introduced on tbe trial, nor tbe instructions refused. *Adkins*v. *Globe Fire Ins. Company,*45 W. Va. 384; *Carr & Keys*v. *Coal Company,*64 W. Va. 448; *Bashar*v. *Railway Company,*73 W. Va. 39; *State*v. *Goldstrohm,*84 W. Va. 129; and *Coal Run Coal Company*v. *Cecil,*94 W. Va. 116.

Tbe transcript of tbe justice’s docket, transmitted to tbe clerk of tbe circuit court pursuant to section 230 of chapter 50 of tbe Code, recites that upon oath made by R. L. Grim, a *member*of tbe state police, that Rupert Christian did unlawfully transport a certain quantity of moonshine liquor, contrary to tbe laws of tbe State of West Yirginia, tbe justice issued a warrant for the arrest of said Christian and placed tbe same in tbe bands of Frank Gautier, a special constable, who returned the warrant with tbe following endorsement: “Executed tbe within warrant, on the 8th day of November, 1924, by arresting the within Rupert Christian and bringing him before John R. Cook, Justice of tbe Peace of Slab Fork District, Wyoming County, West Yirginia;” and that the said Rupert Christian was arraigned before said justice, and was tried and found guilty as charged in tbe complaint. Tbe justice further certified “that tbe warrant of arrest, and all other papers in said case are herewith returned and accompany tbe transcript.”

Tbe warrant upon which the defendant was tried in tbe circuit court, as evidenced by the verdict of the jury endorsed thereon, and tbe certificate of tbe clerk of tbe court, charges that one Jim Fannin, on a certain day, did unlawfully and feloniously own, operate, maintain, possess and have an interest in a moonshine still, kept and secreted in a certain automobile bearing license number 137681, in Wyoming County, contrary to tbe laws of tbe State of West Yirginia, and commands tbe officer to whom it is directed to “apprehend tbe .said James Fannin and Rupert Christian” and bring them before tbe justice issuing tbe warrant or some *581other justice of said county, and to search the automobile described and the persons of “James Fannin and all other occupants” of the automobile, and to seize all liquors, etc., found therein. The return on this warrant recites: ‘ ‘ Executed the within writ .'on the 8th day of November, 1924, by arresting and delivering the body of Jim Fannin and Rupert Christian to John R. Cook, Justice of the Peace, Slab Fork District, Wyoming County, West Virginia. (Signed) R. L. Grim, S. P.” This warrant was directed, “To., Sheriff, or any Constable of said County. ’ ’

Section 31, chapter 32A of the Code, makes it a misdemeanor for any person to bring or carry into the state or carry from one place to another within the state any quantity of intoxicating liquors; and section 37 of the same chapter provides that any person owning, operating, maintaining or having in his possession, or having any interest in any moonshine still, shall be guilty of a felony.

Counsel for the State insists that we must look to the transcript of the justice’s docket for the charge upon which the accused was originally tried, to ascertain the charge upon which he was tried upon appeal; and that we must presume that the proceedings in the circuit court were regular, and that the defendant was tried therein on the same warrant and charge on which he was tried before the justice. But the record conclusively shows that he was tried in the circuit court on the warrant charging Jim Fannin with a felony. The following verdict, as certified by the clerk of the court, is endorsed on this warrant: “We the jury find the defendant Rupert Christian guilty as charged in the within warrant. J. P. Lusk, Foreman.” And this warrant does not charge Rupert Christian with any offense.

His demurrer and motion to quash the warrant being overruled, defendant pleaded not guilty, and after verdict moved the court in arrest of judgment, which motion was overruled. Exceptions were taken to these rulings of the court.

It clearly appearing from the record that defendant was tried on a warrant not charging him with an offense, his motion in arrest of judgment should have been sustained. “A *582motion in *arrest of judgment*is an application to tbe court, on tbe part of tbe defendant, that judgment for tbe plaintiff be arrested or withheld, on tbe ground that there is some error *appearing on the face of the record*which vitiates tbe proceedings. In consequence of such error, in whatever part of tbe record it may arise, from tbe commencement of tbe suit to this period, tbe court is bound to arrest tbe judgment.” 4 Minor’s Inst. (3rd ed.) Pt. 2, page 939. *Commonwealth v. Chalmers,*2 Va. Cas. 76; *State*v. *Vest,*21 W. Va. 796; *Gerling*v. *Insurance Co.,*39 W. Va. 689; *State*v. *Davis,*87 W. Va. 184, and cases cited.

Tbe judgment will be reversed, the verdict of tbe jury set aside, and tbe defendant discharged.

*Judgment reversed; verdict set aside; defendant dJ.scharged.*