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


plication to which private and dis
cretionary tribunal Is naturally ex-
posed" Paley and Hutton on Convic-
tons and Nun and Walsh on Justice,
quoted in Hurd. Hab. Cor. 4O1, 4O3.
All Of this proceeded upon the legal
presumption against the Jurisdiction OF
an inferior court. 1t had to be affirm
atively shown at every step; but, when
shown, there was presumption in IA
yor OF proper exercises thereof. AS
evidence OF guilt was essential to
conviction, even though the process
was perfect and the offense alleged
was within the Jurisdiction OF the court
and sufficiently charged, the court. on
writ of habeaS corpus, looked TO the
record for findings Of the facts consti-
tuting the Offense. the specific acts
proved, in the opinion Of the magis-
trate; and, II the record did not dis
close them, or enough OF them to con-
stitute an offense, II seems the prison.
er was deemed not to have been legally
convicted. Whether it was the prac-
tice to discharge him. when the court
found this state Of the record. but also
found evidence Of guilt, or 10 remand
him for proper procedure, 1t is not nee
essary to inquire.
Our statute, code, CHI so, secs. 176 to
l79, inclusive, seems implicitly to have
eliminated some of the Formally re-
quired by the ancient law. Its pre-
scription OF the docket to be kept by
justices and the contents thereof, omits
the requirements Of any recital OF facts
found. AS to the Judgment, it requires
no more than that it shall be stated"
with the items OF costs included there
in. Sec. 1872 Of the chapter makes the
docket or transcript thereof evidence
OF the judgment or other proceeding.
but declares it shall not be conclusive
II errors or omissions be shown" The
obvious result Of this legislation is that
the judgment Of justice entered in
his dockets proves the jurisdictional
facts. in the absence of proof OF lack
thereof. In other words. II is prlma
facie evidence, and the judgment is not
void for want of a full recital thereof.
But, whether recited or not, the judg-
ment is open to contradiction and I'M
parchment on questions OF facts going
to the Jurisdiction. In this respect, 1t
differs from the Judgment OF a super
Tor court. which is conclusive. unless
the lack Of Jurisdiction appears on It's
face. or by matter OF record. not con-
Trajectory OF the judgment itself. One
iurisdictional question IL. whether
there was any evidence Of the perpe-
tration Of acts constituting an offense.
II there was. the justice had jurisdic-
ton to determine its sufficlency and
to resolve doubts in cases of conflict;
and the case. rs well as the prisoner.
was within his power and jurisdiction.
When prisoner is within the jurisdic-
ton Of court in all respects, he is not
Illegally deprived of his liberty. For
mere errors in procedure or Judgment.
he is not entitled to a discharge. and.
for correction thereof. he is limited to
an appeal, writ Of error or certiorari:
perhaps in this state. to an appeal only.
in the case Of an erroneous Judgment
OF Justice.
For an otfense OF which justice
has Jurisdiction. committed in his
presence or the presence of consta-
Bile, an arrest may be made without
a warrant. Code. oh. so. sec. 221.
ser. sec. 2775. In other cases. there
must be warrant and it can be Is
sued only on information under oath
of credible person: and It must de-
scribe the offense alleged to have been
committed. "as heretofore required
in such cases by law" Code, CHI. So
sec 1928. ser. sec. 2777. State V. Harr
ct ais, decided at this term. A search
warrant must also be founded upon
a showing of probable cause. support
cd by an oath or affirmation, and 1t
must particularly describe the place
to be searched. Constitution, Art III,
sec. 6; Acts, 1913. CHI. IS. sec o; code,
oh. 1856, secs. l and .. ser. secs, 5513.
5514.
Examined in the light OF these re-
quirements, the complaint and war
rant were utterly insufficient. as has
been indicated. There is no direct al
legation of any offense by Emsweller.
SO ii must appear that
the ofrense was directly charged, and
not by implication, and contained in
express terms every ingredient neces-
sary to constitute the crime described
by the statute" Hurd, Hab. Cor. 2
Ed, PIP. 4O1 and 2; r. V. Thompson,
2 7. X. IS; h. V. Pearce, East. 35S;
K. V. Davis, 6 T. II. III; Ardry V.
HoOle, COwp. 1926. He was not liable
to arrest as an inmate OF any place
searchable under the warrant, as the
officers return shows he was arrested,
because the warrant, as search
warrant. was void by both the statute
and the constitution, for lack of de-
scription OF any place to be searched.
There is no charge that he had car
ried intoxicating liquors in such man
ner as to constitute an offense under
sec. 81 OF oh. 13, Acts 1913, added
by oh. Z, acts 1915; nor that he had,
kept or used such liquors in any of
the forbidden places. II the warrant
had sufficiently charged any offense,
his plea OF guilty would conclude him,
but such plea to void charge, did
not authorize a judgment of convic-
ton. The fact is that the liquor was
found in Emsweller's pockets. He
had four pints of beer and Jenkins.
arrested with him, had three, which
they say they were carrying to their
homes for personal use. There was
no proof of any of the circumstances
before the justice, but the afidavits
filed in support Of the writ state them
as here given and they are not con-
tradicted by the officer who made
the arrest and seized the liquor, or
any other person.
"A the warrant is void Fnr 1,cL ~