93 W. Va. 411 | W. Va. | 1923
G. C. Hickey in his petition alleges that he was arrested by deputy sheriffs of Logan county, upon some fictitious charge, on the 24th of February, 1923, while returning to his home from Berkeley Springs where he had been summoned as a witness in a criminal prosecution, and lodged in the jail of Logan county, and at his request was arraigned before G. F. Gore, a justice of the peace of that county,' on the 27th day of that month. He charges that the prosecuting attorney of. that couny prepared a warrant at the pre
It will be observed from the petition that the claim on which release from imprisonment is sought by this writ is that the charge of felony in the murder of Gore is fictitious and is the result of (1) spite and ill feeling on the part of certain officials toward the applicant arising out of his connection as a witness with the criminal prosecution against Keeney; and (2) that the warrant upon which he was tried at the preliminary hearing was based upon the information of probable cause by White, the jailer, who was then present and whose name was inserted by the prosecuting attorney when the warrant was prepared. ■
We cannot consider the allegation of want of probable cause. The evidence in support thereof was taken upon an application for bail, and not upon the preliminary hearing. Upon the application for bail it was not incumbent upon the state to detail evidence which was in its possession of the commission of the crime by the defendant. It would have been required to produce sufficient evidence to sustain a conclusion of probable cause at the preliminary hearing, but not on the application for bail. The waiver of a preliminary examination by persons charged with crime is prima
Was the warrant charging this defendant as accessory, before the fact to the murder of John Gore, John Caffago and James Munsey, alleged to have been prepared at the time of the arraignment before justice G. P. Gore, sufficient to give the justice jurisdiction of the case? The petition says-that a warrant was then prepared on which they were tried and held over to answer an indictment. It is charged that the name of White, the jailer, who was present at the time, was inserted in the warrant as the person who had made the complaint on which the warrant was based. The warrant itself is not made a part of the petition. We know not what it contains. We assume that it was issued regularly; that it was in due form and signed by the justice upon the complaint of some credible person. It is not imperative that the complaint upon which a warrant is issued should be reduced to writing. Neither the constitution nor the statute require it to be made in writing. The constitution in Article III, section 6, says:' “No warrant shall issue except'upon probable cause supported by oath or affirmation particularly describing the place to be searched, or the person or thing to be seized.” Sec. 26 of chap. 156 says that where complaint of'a criminal offense has been made to a justice, “he shall examine, on oath, the complainant and any other witnesses, and if he sees good reason to believe that an offense has been committed, shall issue his warrant reciting the accusation, and requiring the person accused to be arrested and brought before a justice of the county.” It is the usual practice for the justice to reduce the statement of the complainant to writing, and require him to sign and formally make oath thereto. This is the safe course, as it would preserve accusation and prevent denial thereof. ■ It would be a protection to the justice or judge issuing the'warrant and show that he did not issue it upon his own initiative and that he had probable cause therefor. Whether White had theretofore been examined under oath or whether he had made such complaint in writing does not appear. We must
The allegations of the petition are insufficient for us to hold that the warrant was illegal and void. Ex parte Evans, 42 W. Va. 242. Moreover, it appears from the evidence upon the application for bail, which is exhibited as a part of the petition, that when defendant was arrested at or near Hinton on his return from Berkeley Springs, the officers had a warrant charging him with having committed murder upon John Gore, which warrant was read' to Hickey and his companions, "William Arms and Walter Arms. In the evidence of William Arms he said he was arrested upon a warrant for killing John Gore; and Walter- Arms was asked:- “Q. When did you hear of any charge against you? A. It was below Hinton three deputy sheriffs got on the train and said, ‘we have got a warrant for you fellows, all three of you (William Arms, Walter Arms and G. C. Hickey), he said ‘Where is Blankenship?’ and I said ‘Eating his breakfast,’ and he handed me the paper and asked me if I wanted him to read it to me, and I said ‘Yes,’ and he read it off to me.”* This was evidently the warrant,'a copy of which is filed with the return, and appears to have been issued by F. Mitchell, a justice of the peace of Logan county; and states that it was issued upon the complaint and information on oath by Jess Price, to the effect that Frank Kitchen, on the 31st of August’, 1921, in the -county of. Logan, did feloniously, wilfully, etc., slay one John C. Gore; and on .that day and year, in said county, G. G. Hickey did feloniously, wilfully, maliciously and deliberately counsel, procure and instigate the said Kitchen to slay, kill and murder John C. Gore in the manner and at the place aforesaid; therefore the warrant was issued in due form for the arrest of G. C. Hickey. This information and warrant charges that Hickey was an accessory before 'the fact to the murder of John Gore; the petition for habeas corpus alleges that Hickey was tried on a warrant charging him with being accessory to the murder of Gore, Munsey and Caffago, and
Under the facts above set out, we think it sufficiently appears that Justice Gore had jurisdiction to conduct and determine the preliminary hearing in Question, and as petitioner waived preliminary examination ■ and was thereupon regularly committed to the custody of the jailer to answer an indictment, we cannot consider the allegations of want of probable cause. Discharge of the prisoner on the writ will be denied.
However, upon the application of the prisoner to bet admitted to bail, we are of the opinion that good cause therefor has been shown, and that he is entitled to give bail for1 his appearance before the circuit court of Logan county on the first day of its next regular term, to answer any indictment. which may be returned against him on the charge aforesaid, and will fix the penalty of his bond in the sum of $2500, with good security to be approved by the clerk of this court, conditioned for his appearance as above indicated. ■
Petitioner remanded.