72 W. Va. 243 | W. Va. | 1913
Lead Opinion
On petitions and rules to show cause against it, petitioners ■seek to prohibit, Hon. James W. Eobinson, Judge of the Criminal Court, and A. Judson Findlay, Prosecuting Attorney, of Harrison County, from proceeding further upon certain indictments against them charging them respectively, with embezzlement, while deputy sheriffs, of public funds and property, of said county, coming into their possession by virtue of their said offices, places and employments.
The indictments were returned at the December Term, 1911, of said court, at which term the petitioners voluntarily appeared, and entered into recognizances for their subsequent appearances to answer the indictments; and leave was granted them to plead thereto, on or before the next regular term, being the March Term, 1912; of said court. At that term, petitioners appeared, and after certain motions and pleas tendered by them were rejected, their motions to require of the State a bill of particulars was sustained, and a bill of particulars was filed, and without further action the cases were then continued until the next regular June term of the court, petitioners again entering into recognizances for their appearances at that term. At the June
This was the only action of the court in these eases at that term, except the following order, entered on the same day: •'This court being about to end without dispatching all.its business, it is ordered that the court do now adjourn until the 17th day of February, in the year 1913.”
At the adjourned term, held on the day appointed in February, defendants were called, and not appearing, capiases were awarded for their apprehension and to bring them into the court to answer the indictments. And the petitions allege that on the convening of the court at this term on request of the .court counsel for petitioners appeared, but in their absense, and the prosecuting attorney announcing- in open court that he desired to proceed with the trial of petitioners, their counsel, in their absense, stated to the court in substance the following: "Our respect for this Court and our sense of obligation as members of this Bar, constrain Mr. Sperry and myself to state briefly the views which we entertain with respect to the indictments returned at the November Term, 1911, against Sherman C. Denham, John G. Lang and Adelbert A. Lang. It is our opinion that by the orders entered in this court on the 16th day of December, 1912, the prosecutions against said defendants upon said indictments were finally and effectually terminated, and that this court no longer has jurisdiction of or over said defendants, and further than this we have nothing to submit for the consideration of this Court at this time.” And it-is further alleged that thereafter on motion of the prosecutor, the capiases were awarded, and that unless prohibited defendants.in
The returns of respondents admit all the material facts as alleged.
The grounds on which petitioners rely, as stated in their petitions, are substantially: 1. That by the nolle prosequi entered by the Prosecuting Attorney by the advice and consent of the Attorney General, the prosecution of petitioners on said indictments was finally ended and determined. 2. That even if the nolle pro-sequi so entered without the consent of the court was ineffectual the order discharging petitioners from the custody of the sheriff terminated the indictments and prosecution thereon, and that the Court thereby lost jurisdiction of the indictments, and to try petitioners thereon. 3. That there having been three regular terms of the Court after the indictments were found without trial, petitioners were thereby, by virtue of section 25, chapter 159, Code 1906, forever discharged from prosecution for the offences alleged against them, and that for this reason also said Court was without jurisdiction of said indictments or to try petitioners thereon at said adjourned term, or at any term thereafter.
First, then, did the nolle prosequi entered in these cases become effectual without the consent of the court? Nolle prosequi 'has been variously defined, as follows: “An entry made on the record, by which the prosecutor or plaintiff declares he will proceed no further.” Bouv. Law Diet., 503. “A formal entry upon the record by the prosecuting officer, by which he declares that he will not further prosecute the case, either as to some of the counts of the indictment, or part of a divisible count, or as to some of the defendants, or altogether.” Clark Crim. Proc. 135; Black’s Law Diet. 820; 12 Cyc. 374. As will be observed these definitions do not include the “consent of the court” ; but they do not necessarily exclude it. They conform to the common law rule not requiring such consent. It is conceded on both sides that at common law the action of the attorney general could not be controlled by the court, after indictment found, and before entry upon the trial, and the rights of defendant on trial has supervened. 23 Am. & Eng. Ency. Law, 276; 12 Cyc. 375; 1 Bishop Crim. Proc. (3rd ed.) section 1388; People
But the question here is does the rule of the common law obtain in West Virginia ? It is clearly not a rule of substantive law which a prisoner has the right to enforce. At most it is but a rule of practice, available to the discretion of the attorney general, or prosecutor, representing the state, and as the authorities cited show one which at common law could not be controlled by the court. In the Colorado case cited, especially relied on by petitioners, and where it is said the common law rule prevails, Chief Justice Hayt, says: “In a few states the power1 of the district attorney to enter the nolle prosequi has been denied, but such denial, we think, has generally been based upon statutes or the practice in those slates. The practice of consulting the court and getting its permission to discontinue a criminal prosecution having been followed in those states, without exception, for many years before being challenged in the appellate courts, when so challenged the higher court gave as a reason for .denying the right of the district attorney to enter a nolle prosequi without the consent of the court, that the contrary practice had been followed so long as to become crystalized into law.” In 23 Am. & Eng. Ency. Law, supra, page 276, the authorities pro and con are collated in notes. After citing the ■cases adhering to the common law rule it is said: “Other cases hold that the power to enter a nolle prosequi is to be exercised only with the assent and approval of the court.-” Citing the cases. 1 Bishop, Crim. Law, §1389, says the same. So says 12 Cyc. 375. It was conceded in argument that beginning with Anonymous, 1 AT'a. Cases, 139, where the question was directly and distinctly decided, by the general court, that this has been the rule in Virginia. And that such has been the uniform practice in Virginia, and in this state since it( was formed, is manifest from the language of the courts in Lindsay v. Com., 2 Va. Cases, 345; Com. v. Adcock, 8 Grat. 663; Randall v.
But it is argued that the rule of practice obtaining in the trial courts can not control the action of the attorney general, who concurred with the prosecuting attorney; and we are cited many state and federal cases,, for the proposition, that the ■attorney general is a constitutional officer with few defined powers and that by the federal and state constitutions the mantle of the attorney general of England must be deemed to have fallen upon the office of attorney generals of all the American ■states, when uncontrolled by the organic law or some legislative •enactment. This proposition is affirmed on the authority of Art. 7, section 1, Const. W. Va.; United States v. San Jacinto Tin Co., 125 U. S. 273; 3 Am. & Eng. Ency. Law, (2nd ed.) pp. 475, 476, 479; People v. Miner, 3 Lans. 397; State v. Robinson, 101 Minn. 277, 112 N. W. 269; Hunt v. Chicago H. & D. Ry. Co., 121 Ill. 638, 13 N. E. 176; Regina v. Allen, 1 Best & Smith 851, and our case of State v. Ehrlick, 65 W. Va. 700. We can not accede to the proposition in its entirety.- So far as the attorney general may undertake to.exercise or control the powers and duties of prosecuting attorneys-we think he is limited by the same rules - of practice that control them. The
Another point in connection with this proposition, not noted by counsel, has occurred to us. The reason given by the court below for withholding its assent to the entry of a nolle prosequi is that the State Tax Commissioner had objected, and had requested the continuance of the case to an adjourned term. We think we may assume that these prosecutions grew out of the auditing of the public accounts of the defendants. by the State Tax Commissioner. Section 1, chapter 10B, Code Suppl. 1909, contains this provision: “If any such examination discloses misfeasance, malfeasance or nonfeasance in office on the part of any public officer or employee, a certified copy of the report shall be filed with the proper legal authority of the taxing body for such legal action as is proper in the premises. Refusal, neglect or failure on the part of the proper legal authority of the taxing body to take prompt aiid efficient legal action to carry into effect the findings of any such examination, or to prosecute the saíne ito a final conclusion, shall give to the chief inspector the right to institute the necessary proceedings or to participate therein, and to prosecute the same in any of the courts of the state, to a final cohclusion.” Who is the legal authority of the taxing body of the county? Is he not the prosecuting attorney, under chapter Í20, Code 1906? Section 6 of that chapter, we think) makes him so. Section 5 of the same chapter imposes upon the attorney general none of the Specific duties imposed upon the pr'o'sebuting attorney by the sixth section. If it was the opinion of the State Tax Commissioner that the proséeuting
Second, did the court below, the nolle prosequi being ineffectual, lose jurisdiction of the indictments and to try the defendants, by discharging them from the custody of the sheriff ? We think not. The indictments still remain. The court plainly did not intend to discharge the defendants from prosecution. This is manifest from the character of the order, and by the court’s refusal to concur in or consent to the entry of the nolle prosequi. The order shows that the prisoners were surrendered by the bail in open court. In such cases, section 12, chapter 162, Code 1906, says, the court “shall take such order as it deems best.” We must assume that good reasons then appeared to the court for not committing the prisoners to jail, but there was no discharge from prosecution, and the court by the same order adjourned the term to a later date, for the evident purpose of bringing the prisoners to trial upon the indictments. The order is susceptible of no other reasonable construction. At one time it was questioned whether the entry of a nolle relieved the defendant from prosecution on the same indictment, brrt there seems to be no question about that now. Com. v. Wheeler, 2 Mass. 172, 173, opinion of Sedgwick, Judge. Now the entry of a nolle prosequi is deemed a discontinuance of the suit, a declination on the part of the prosecutor to further prosecute, on the indictment or that part of it to which the nolle relates. But where the indictment remains, and the prisoner is out on bail or escapes, or is even discharged upon the order of the court from custody or imprisonment, there is no loss of jurisdiction upon the indictment. What is to prevent' the court in such cases from awarding a new capias to retake the defendant as in the first instance? It is true our statute seems to make no provision for one accused or convicted of crime to go at large, and without recognizance of bail, and it may have been abuse of power for the court in this case to have discharged the defendants from custody. But is that a matter of which defendants can complain or take advantage when about
The third and last point to be considered is, were defendants entitled to be discharged, because three regular terms of the court had elapsed after the indictments were found, without trial? If three regular terms had so elapsed, section 25, chapter 159, Code 1906, entitles them to be forever discharged from prosecution, and to the writs prayed for. Notwithstanding the plain import of the words of the statute, support for the proposition that an adjourned term is a new and distinct term, and not a part of or continuance of the regular term adjourned, is sought in certain language of the statute; for instance, the words of section 4, chapter 112, Code 1906, providing: “If any term of a circuit court is about to end without dispatching all its business;” and of section 5, of the same chapter: “If any term of such court has ended.” The words “about to end” and “has ended” are emphasized, as implying that when an order for an adjourneed term is entered the term adjourned is thereby ended, for by the statute, unless a term is “about to end” there is no warrant for an order for an adjourned term, and that there is no difference so far as such an adjournment is concerned between an adjourned term and a special term, called by authority of section 5, when “any term of such court has ended ” We see little force in this argument. What did the Legislature mean by providing in the same chapter for adjourned terms and special terms ? Authority to call special -terms was required; but the provision for adjourned terms was merely declaratory of the common law right of all courts to adjourn from day to day or from time to time. Mann v. County Court, 58 W. Va. 651.
The provision of the statute giving finality to judgments and decrees previously entered was not intended to characterize the terms as final in other respects, for by the statute, adjournment to another day is not a final adjournment. The business of the term not completed is by force of the statute carried over to the day to which the term is adjourned. True we held in Tunney v. Steel & Iron Co., 69 W. Va. 158, that a bill of exceptions in relation to a judgment entered at a term which is so adjourned must be saved either before adjournment or within thirty days thereafter'. But that construction was necessary to give full force to the statute giving finality to judgments and decrees so entered. As to business not disposed of the adjourned term is a continuance of the regular term adjourned. What other meaning could be given to the statute authorizing an adjourned term?
But we are not wanting in adjudged cases to, support our construction of the statute. In Alexandria v. Withers, 6 Wheaton 107, Chief Justice Marshall said, apropos to the facts in this case: “There being nothing in any act of Congress which prevents the courts of the district from exercising a power common to all courts, that of adjournment to a distant day; the adjournment of the 16th of May to the fourth Monday in June, would be a continuance of the same term, unless a special act of Congress, expressly enabling the courts of the district to hold adjourned sessions, may be supposed to vary" the law of the case. That act is in these words: ‘And the said courts are hereby invested with the same power of holding adjourned sessions that are exercised by the courts of Maryland.’ These words do not, in themselves, purport to vary the character of the session. They do not make the adjourned session a distinct •session’. They were, probably, inserted from abundant caution, and áre to be ascribed to an apprehension, that courts did not possess the power to adjourn to a distant day, unless they should be enabled so to do by a legislative act. But this act, affirming a preexisting power, ought not to be construed to vary the nature of that power, unless words are employed which manifest such intention. In this act, there are no such words, unless they are found in the reference to the courts of Maryland. But on inquiry, we find, that in Maryland, an ‘adjourned session’ is considered as the same session with that at which the adjournment was made.”
We do not see from the record that the rights of the petitioners to a speedy trial, guaranteed by the bill of rights, has in any way been invaded by the delay. . They were entitled to reasonable time to prepare for trial, and the state to three full terms
Our conclusion is that petitioners are not entitled to the writs prayed for and they will be denied.
Writ Refused.
Dissenting Opinion
(dissenting):
Unable to accept the proposition stated in the fourth point of the syllabus, I am compelled to dissent, and would grant the writs of prohibition prayed for.
Viewed from the standpoint of its character and substantial provisions, not from its mere name, the term designated as an adjourned term and provided for in section 4 of chapter 112 of
This makes the adjourned term practically the same as a special term provided for in sections 5, 6 and 8 of the same chapter, to be called when the court has ended without having dispatched all of its business, or there has been a failure to hold any term, or when, in the opinion of the judge, the public interests require a special term. The occasion for the adjourned term and a special term is exactly the same, and likewise the purpose. In the latter ease, the term does not actually end and another one is called.' In the former, the court, foreseeing inevitable ending of the term, without disposition of all of its business, provides for another term by designation upon its order books.
Taking the court’s recital as to the occasion for the adjourned term, or reason for providing for it, as true, these petitioners would have been entitled to a discharge by reason of the expiration of the regular term without a trial, if the adjourned term had not been provided for. Their legal right to a discharge would have vested, had not the court called an adjourned term. Had the adjourned term not been called, the regular term would have ended without trial of the petitioners, and a special term, admittedly a new and distinct one, would have been called for exactly the same purpose for which the adjourned term was provided.
The construction given the statute by the court, making the adjourned term a part of the previous term for all purposes-, except those specifically excepted by the statute, inevitably enables the court to do at the adjourned term what it could not do at the regular term, if its recital be true, nor at the special term, and, to curtail, to this extent, the right of the prisoner conferred
A case of a person not tried, for want of time, but triable, at the third regular term after the one at which he is indicted, is a case disposed of by the law otherwise than by continuance, for, on the expiration of the regular term, the law discharges him. This must be so, unless we say the legislature intended to limit and cut down the right of such persons without having said so in so many words or in terms necessarily implying such intent. If due effect be given to the phrase “not otherwise disposed of” and the presumption against legislative intent to amend one statute by another, as a matter of mere uncertain and unnecessary implication, the legal discharges here claimed are within the exception made by the statute itself. Under my interpretation, the cases are, in the language of the' statute, otherwise disposed of, on the ending of the term, by the force and effect of another statute.
One of the consequences flowing from the construction given the statute by the Court is that the state, represented by the trial court to some extent, as shown in the opinion, may always give the state a virtual continuance under the guise of an adjourned term, when it has no ground upon which a continuance could be obtained in the regular way. I do not mean to say that it has been done in these cases, but the construction given this statute by the majority of this Court opens the door to such a possibility. That alone is sufficient to condemn the construction. It makes it inconsistent with the statute giving prisoners right to be discharged on the expiration of three regular terms without trial, when the failure to try them at such terms has not been occasioned by their own conduct. It also gives the state a power of continuance not authorized by' any statute or the common law relating to continuance.
In at least one instance, the court has treated the adjourned term the same as a special term, as to a matter not expressly excepted by the terms, of the statute. Section 9 of chapter 131 of the Code allows the trial court to make up and sign bills of exception, in vacation, within 30 days “after the adjournment of the term.” If this provision were governed by the principles
Section 4 of chapter 112 of the Code was not construed in Mann v. County Court. The statute analyzed and construed in that case was an entirely different statute, one simply declaratory of the common law. A continuance under that statute gives no right to draw a new jury, nor did the legislature provide, in such cases of adjournment, for the continuance of causes not otherwise disposed of, nor say the witnesses need not be re-summoned.
Judge Lynch concurs in this dissent and opiniop.