83 W. Va. 9 | W. Va. | 1918
Smith H. Bracey who was discharged from further prosecution on four indictments, for reasons stated in Ex parte Smith H. Bracey, 95 S. E. 593. seeks a writ of prohibition to prevent his trial on an indictment subsequently found against him, on the ground that the subject matter of the new indictment is the same offense, in violation of a constitutional guaranty.
Second jeopardy is the subject matter of a plea in bar in a criminal case. Pleas of autrefois acquit and autrefois
Although the trial court. overruled the petitioner’s motion to dismiss, supported by affidavits adduced to prove identity of the prisoner and the offense, and refused to permit him to file his plea of autrefois acquit, these rulings did not amount to a deprivation of any constitutional right. In so disposing of the attempted defense, the court acted clearly within its jurisdiction, howéver erroneous the rulings may have been, if erroneous at all. At the proper time, they may be available as grounds of error, but they are not cause for. ouster of the court’s jurisdiction, discharge of the prisoner or review by the .writ of prohibition. That this writ does not lie except in cases of lack of jurisdiction, nor for the correction of mere errors committed in the exercise of jurisdiction, are propositions Iso elementary and so well known as not to require citation 'of authority for them. '
As the petitioner’s case has not progressed in the trial court to judgment, and that court has obvious and indisputable jurisdiction up to that point, there has been no infringement of his constitutional right by any act in excess of jurisdiction, and the writ cannot be allowed to withdraw the case from the jurisdiction of the court or to correct its errors in the entry of interlocutory orders.
For the reasons stated, the rule will be discharged and the writ prayed for refused.
Writ refused.