The daily telegram. [volume] (Clarksburg, W. Va.) 1901-1926, 1916-04-24
EXCLUSIVE SHOES

The prisoner could lawfully carry
four pints of intoxicating liquor TO
his home for his personal use, without
label.
Reversal of the judgment refusing
to discharge the prisoner and remand
ing him, and his discharge here in
the exercise of appellate authority, to
do what the trial court should have
done, terminates the controversy in
volved in Emsweller's writ of error
to the judgment refusing an appeal,
and reduces that proceeding to a
moot case, wherefore that writ of err
Tor will be dismissed.
But it is necessary to determine
whether the court erred in refusing
to grant Jcn':I; an appeal.
The judgment was rendered against
him, June 20, 1915. He filed his pc
tition in the circuit court, praying
for an appeal, July 20, 1915. In it,
he protested his innocence of any Of
Tense. charged error in the procedure,
illegality of his conviction and refus-
al of an appeal by the justice. Pro-
ceeding upon the theory of right TO
take an appeal at Tn. hands of the
justice, within ten days after the
| Judgment, and on a showing of good
cause for failure so to obtain II, to
have it granted by the circuit court or
the judge thereof in vacation, within
ninety days, he alleged an application
therefor to the justice within ten days
and his refusal to grant it. Resistance
| by the prosecuting attorney, to the
application to the court was permitted,
and he denied the existence of the
cause shown for failure TO obtain the
appeal from the justice. In support
OF this denial, he filed the atIidavits Of
the justice and another person, saying
no such demand had been made. The
attorney general argues that an appeal
from the judgment can be demanded
only at the rendition of the judgment.
The statute allows an appeal in any
criminal case, under certain regula-
lions, and does not, in terms, limit the
right as to time, as it does in civil
cases. Code, CHI. so. sec. go, ser. sec.
27S5 Whether the time limitation pro-
vided in civil cases, code, CHI. so, secs.
| 167 and ia. ser. secs. 272l, 272S, is to
be applied on the principle OF analogy,
it is not necessary to decide; but there
is no manifestation Of legislative intent
TO require the demand for an appeal
to be made at the very hour or day of
the rendition Of the Judgment. As time
for applications for appellate relief is
| allowed in all other cases, denial Of il
in those instances in which the liberty
of citizen is involved, would be man
ifestly inconsistent with established
public policy as we'll as reason. On
/ the face OF the statute. the right OF ap-
peal in such cases is unlimited and it
is a constitutional right which the
legislature may regulate, but not
| wholly deny. nor unduly burden. We
took V. Hufford. "A W. Va. 1856 A
statute OF Virginia somewhat samilar
to ours has been construed as requir-
ing an immediate demand for an ap-
peal. Combs V. Com, 95 Va, IS, but the
reasoning Of the court in that case
does not convince us of the correctness
Of the conclusion.
We are OF the opinion that an appeal
in such a case, demanded within ten
days, a clearly reasonable period,
should be granted.
On the issue as to whether a demand
was made within that time we think
the doubt should have been resolved in
favor OF the petitioner. The justice
and w, f. Cobun, who deny that the
application was made, both admit the
presence of the fathers of the two
boys at the Justices office on July /.