89 W. Va. 87 | W. Va. | 1921
The petition in this ease avers that on the 28th day of July, 1921, one E. A. Thornton made a complaint in writing duly sworn to before C. R. Clay, a justice of the peace of Marsh Fork District, in Raleigh county, charging that petitioner on the said 28th day of July did feloniously take, steal, and carry away eighteen hundred dollars from the store of McClung & Morgan Stores Co., and that on said day a warrant was issued upon said complaint by said justice; that petitioner was apprehended upon this warrant and brought before said justice on the 29th of July, and that on that day a full hearing of the matters charged in the complaint was had before said justice, the state and the petitioner each introducing a number of witnesses, and that the justice, after hearing all of the evidence offered,
The petitioner insists that having been discharged by one justice upon a preliminary hearing he cannot be arraigned before another justice for another preliminary hearing upon the same charge; that while the action of the justice is not conclusive of his guilt or innocence, still it is effective to prevent him from being subjected to an examination before another justice. Assuming for the sake of argument that the petitioner is correct in this assumption, is prohibition the remedy? The matter relied upon by him is in the nature of a plea of former acquittal. The justice has jurisdiction to issue a warrant upon a complaint charging one with an offense, and he has jurisdiction to conduct a preliminary hearing in a case like this for the purpose of de
It is argued here that should the justice issuing the second warrant in this case refuse to discharge the petitioner upon the showing that he had been theretofore tried before another justice, he would be without remedy by appeal, and would have to give bond for his appearance before the criminal or circuit court, or else be committed to jail; that there is no method provided for reviewing the action of a justice upon such a preliminary hearing. It is quite true that there is no method provided by statute by which the action of a justice committing a party to trial can be reviewed, but still if a justice should, in flagrant violation of the law, hold one for trial and commit him to jail, there are many cases holding that the writ of habeas corpus is effectual to secure his discharge. Ex parte Samuel, 82 W. Va. 486. If it is shown beyond question and without controversy that the accused party should not be held, it may be said that a justice of the peace holding him under such circumstances would be exceeding his jurisdiction. Ex parte Wilson, 114 U. S. 417; Ex parte Milligan, 4 Wall. 2; In re Snow, 120 U. S. 274; Ex parte Lange, 18 Wall. 163; In re Nielsen, 113 U. S. 176. And in the case of Ex parte Page, 77 W. Va. 467, we held that where a justice rendered a judgment which the law did not authorize, the petitioner would be discharged from imprisonment under that judgment upon a writ of habeas corpus.
We are of opinion that, if the matter relied upon by petitioner is a bar to a hearing upon the second' warrant, he must present it to the justice before whom he is brought for such hearing. The writ of prohibition prayed for is denied.
Writ denied.