87 W. Va. 189 | W. Va. | 1920
The four relators, indicted at the September, 1920, term of the circuit court of Mingo County for the murder of A. E. Hatfield at Mate-wan, August 14, 1920, voluntarily appeared at the same term and .jointly entered a plea of not guilt}1-, and moved for the impanelment of a jury and a speedy trial of the charge preferred against them, when the state moved for a continuance of the case until the January, 1921, term of the court. The court, after hearing the evidence offered by the state and the accused in support of the respective motions, sustained the motion of the state and ordered the trial postponed until the succeeding January term, and overruled the motion of defendants for a trial at the -term at which they so appeared. The latter duly excepted to the action so taken and asked the presiding judge, the respondent, the Honorable James Damron, to sign bills of exception and enter an order filing the- exception, including the evidence so heard and read, as part of the record of the case, both of which he refused to do. Relators, at the suit of the state, applied for and obtained the alternative writ requiring him either to sign the bills and enter the order, or show cause for his refusal to do so. As he did neither, they now submit the case on briefs filed by them for the usual peremptory writ, on the theory that, according to the first section of chapter 159 of the Code, they were entitled as of right to be tried at the term the indictment was returned by the grand jury, unless the state showed good cause for a continuance, which they insist was not done.
The language of the statute, so far as pertinent, is: “When an indictment is found in the circuit court of any county against a person for a felony, the accused, if in custody, or if he appear in discharge of his recognizance, or voluntarily, shall, unless good cause be shown for a continuance, be tried at the same
Writ refused by a divided court.