42 S.E.2d 31 | W. Va. | 1947
In this original proceeding in prohibition, the petitioner, Oscar Cosner, seeks to prevent the respondents, the Honorable Ernest A. See, Judge of the Circuit Court of Mineral County, West Virginia, the clerk of that court, and the clerk of the Circuit Court of Tucker County, West Virginia, from trying him, in Mineral County, upon an indictment returned against him by a grand jury of that county for murder charged to have *724 been committed by him in Mineral County, by a jury summoned from the nearby county of Tucker, pursuant to an order entered by the Circuit Court of Mineral County on November 7, 1946. Upon his petition this Court, on November 15, 1946, issued a rule against the respondents to show cause why the writ prayed for should not be awarded. Before the return of the rule, the respondent, the Judge of the Circuit Court of Mineral County, filed a demurrer and an answer to the petition. The petitioner filed a special replication to the answer. Upon these pleadings and upon the record of the proceedings in the trial court, this cause was submitted to this Court for decision upon the merits.
Upon the issuance of the rule, the Circuit Court continued the trial of the indictment until after the decision of this Court and recalled the writ of venire facias which had been issued by the trial court for forty-eight jurors from Tucker County.
The material facts are not disputed and the questions involved are questions of law. These questions are: (1) Is Section 20, Article 1, Chapter 52 of the Code, 1931, constitutional; and (2) if the statute is constitutional, did the trial court exceed its legitimate powers under the statute in ordering a jury to be summoned from Tucker County?
The petitioner, Oscar Cosner, was indicted in October 15, 1946, by a grand jury attending the regular October, 1946, term of the Circuit Court of Mineral County, for the murder of his wife in that county. On October, 16, 1946, he entered a plea of not guilty to the indictment, and the court set the case for trial on October 30, 1946. On that day the trial was continued until November 6, 1946, at which time, the State and the defendant, who was present in person and represented by counsel, being ready, the trial began. Of the original venire of forty-eight jurors, thirty-eight were then in court. Only eight of this number were accepted as qualified. Before proceeding further with the selection of the jury for the trial of the case, the judge of the trial court, without any suggestion *725 or request from the State or the defendant, expressed the belief that a qualified jury could not be conveniently found in Mineral County and that he should call a jury from another county.
Both the Prosecuting Attorney and the attorney for the defendant urged the court to call fifty additional jurors. This the court refused to do but, after some hesitation, did cause forty more jurors to be summoned. Twenty-eight of these jurors appeared during the afternoon session of the court, and from that number only two qualified jurors were obtained. There being only ten qualified jurors available from the two groups of thirty-eight and twenty-eight, the court again gave expression to the view that no more jurors should be called from Mineral County and that a jury should be summoned from another county. Counsel for the defendant and the Prosecuting Attorney requested the court to call fifty additional jurors from the county, which request the court refused to grant. Instead, the court directed the clerk to call forty additional jurors to report the following day, November 7, 1946. At that time thirty of these jurors were present and from that number nine more qualified jurors were accepted, making a total of nineteen qualified jurors who were subject to further examination and challenge by the Prosecuting Attorney and the attorneys for the defendant. At this stage of the proceeding the court expressed the intention to summon a jury from another county and refused the request of counsel for the defendant that ten more jurors from Mineral County be called for the purpose of obtaining one additional juror to complete a panel of twenty jurors.
The defendant, after objecting and excepting to the foregoing action of the trial court, established, by evidence produced in open court, that only ninety six jurors had been examined and only one hundred and twenty eight of the five hundred and thirteen persons whose names appeared on the current list of available jurors of the county had been summoned; that three hundred and eighty five persons remained on the jury list who had not *726 been called or examined as jurors; and that from a population of approximately twenty one thousand persons in Mineral County there were at least two thousand additional available jurors. Despite these facts, which are not challenged or controverted, the court voiced the opinion that a jury should be summoned from the nearby county of Tucker, in the Twenty-first Judicial Circuit of this State, which is composed of the counties of Mineral, Grant and Tucker. The defendant objected to this course of action for reasons which were assigned. The court overruled the objections of the defendant and, by order entered of record, directed that forty eight jurors from Tucker County be drawn to appear at the court house of Mineral County, West Virginia, on December 9, 1946, for the trial of the case, which order was certified to the clerk of the Circuit Court of Tucker County, and that a writ of venire facias be issued by the clerk of the Circuit Court of Mineral County to the sheriff of Tucker County commanding him to summon such jurors for service in Mineral County. To this action of the court the defendant entered timely objections and noted his exceptions.
In his answer the respondent, the Judge of the Circuit Court of Mineral County, admits, in substance, the occurrences detailed above, insists that they are fully authorized by the statute to which reference has been made, and states that he will proceed to try the defendant upon the indictment in Mineral County by a jury summoned from Tucker County, unless prohibited from so doing by this Court.
The contentions of the respondent, respectfully asserted and vigorously urged, are that the statute, Section 20, Article 1, Chapter 52, Code of West Virginia, 1931, is constitutional, and that in the action taken by the trial court, under the statute, it has not abused its discretion or exceeded its legitimate powers or authority. The petitioner insists that the statute deprives him of his common law right to be tried by a jury of Mineral County where the offense charged against him is alleged to have *727 been committed, a right which he contends is secured to him by the Constitution of this State, and that the statute is violative of Section 14 of Article III of the Constitution of West Virginia, and of the Sixth Amendment and the Fourteenth Amendment to the Constitution of the United States.
The contention of the petitioner that the statute is repugnant to the Sixth Amendment to the Federal Constitution is devoid of merit. That amendment provides in part that, in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. The Supreme Court of the United States has consistently held that this amendment does not apply to the trial of criminal prosecutions by a State, Gaines v. Washington,
The contention of the petitioner that the statute here assailed, Section 20, Article 1, Chapter 52, Code, 1931, violates the due process provision of the Fourteenth Amendment, and deprives him of the rights guaranteed to him by that amendment, will be hereinafter discussed and resolved.
The petitioner insists that Section 20, Article 1, Chapter 52, Code of West Virginia, 1931, deprives him of his common law right to be tried by a jury of Mineral County, a right which he asserts is preserved and guaranteed to him by the Constitution of this State, and, for that reason, is in contravention of Article III, Section 14 and Article VIII, Section 21, of that fundamental law. This contention raises questions of grave practical importance which it is the duty of this Court to consider and determine.
In the correct solution of these issues it is appropriate to determine the character of the right of the accused to a trial by jury as it existed at common law with respect to the place where the trial should be conducted and the locality from which the members of the jury should be selected. On these points the authorities are not in complete accord. One line of decisions adheres to the view that at common law the accused must be tried in, and by a jury from, the vicinage or county in which the offense is alleged to have been committed. A case which advances that opinion is People v. Powell,
"When, therefore, a prisoner on his arraignment has pleaded not guilty, and for his trial hath put himself upon the country, which country the jury are, the sheriff of the county must return a panel of jurors, liberos et legales homines, de vicineto; that is, freeholders, without just exception, and of the visne or neighborhood; which is interpreted to be of the county where the fact is committed."
Reliance is also placed upon a quotation from Cooley, Constitutional Limitations, 5th ed., page 392: "The jury must also be summoned from the vicinage where the crime is supposed to have been committed.", and upon this passage in Story, Constitution, Section 1781: "By the common law, the trial of all crimes is required to be in the county where they are committed. Nay, it originally carried its jealousy still further, and required that the jury itself should come from the vicinage or the place where the crime was alleged to have been committed." Other cases which adopt this view, to which reference may appropriately be made, are: Althoff v. State,
That this right, at common law, was not an absolute right in the accused to be tried in the county in which the offense was committed by a jury obtained from that county, but was conditioned upon the possibility of a fair and impartial trial in that county, is the view expressed in another, and perhaps more numerous, group of cases. Barry v. Truax,
*731"* * * We do not think, however, that this contention accords with the fact. We are of opinion that neither the common law as it existed in England at the time of the Revolution, nor as adopted in this country, gave the defendant an absolute right to a trial in the county of the offense. This is, at least, the opinion of a large number of American courts, whose views are entitled to most respectful consideration, and, as we shall hereafter see, it is sustained by the English cases and text writers. * * *"
In State v. Cutshall,
In our own case of State v. Lowe,
"This provision of our Constitution confers on a person accused of crime, with reference to the place where he is to be tried, the privileges, which the common law conferred on him, thus making these common law privileges, of the accused constitutional rights, which the legislature cannot take from him without his consent. There never has been a question as to the fact, that all the privileges conferred on the accused by these constitutional provisions were also conferred on him by the common law. For by the common law crimes of every description could only be prosecuted in the county wherein they were committed; but if any impartial trial could not be had in that county, the case might certainly be removed at the instance of the accused, and it might be perhaps at the instance of the State."
In a note to the case of State ex rel. Fletcher v. DistrictCourt of Jefferson County,
Consideration of the views expressed in the foregoing authorities justifies the conclusion that at common law the right of an accused to a trial by a jury of the county in which the offense was committed was a general, not an unconditional or absolute, right, and that this right was limited by the right to cause the proceeding to be removed to another county, upon the application of the prosecution or of the defendant when necessary to obtain a fair and impartial trial, and that, in this respect, there was no substantial difference between the trials of felonies and misdemeanors. See Barry v. Truax,
The pertinent portion of Article III, Section 14, of the Constitution of this State provides: "Trials of crimes, and misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men, public, without unreasonable delay, and in the county where the alleged offense was committed, unless upon petition of the accused, and for good cause shown, it is removed to some other county." This language clearly requires that the trial be by a jury of twelve men and that it be held in the county of the alleged offense, unless removed, upon the petition of the accused, and for good cause shown, to another *733 county. It abolishes the right of the prosecution, at common law, in a proper case, to cause the removal of the trial from the county of the alleged offense and renders it impossible for the trial to be had in any other county upon the application of the State or at the instance of the court.
This provision of the Constitution, however, does not state that the jury of twelve men, which it guarantees to the accused, shall be a jury of or from the county in which the alleged offense was committed. In this respect the language is different from the provision in the Sixth Amendment to the Federal Constitution for a trial by an impartial jury of the State and district wherein the offense shall have been committed, and from the provision in the Constitutions of some of the other States of the Union for a trial by an impartial jury of the vicinage or of the county in which the offense was committed.
The effect of the omission of an express requirement that the jury be of or from the county or the vicinage of the alleged offense from our present Constitution, which followed in that respect a substantially similar provision, Article II, Section 8, of the Constitution of this State of 1863, is to recognize and preserve, but not to embody in express terms, the right of trial by jury, and, without defining or incorporating it in detail other than to guarantee a jury of twelve men and a public trial without unreasonable delay, is also to leave the matter of the method of procuring and impaneling the jury and of regulating the procedure incident to a trial by jury to be dealt with by the Legislature, subject to Article VIII, Section 21, of the Constitution, which declares that such parts of the common law, and of the laws of this State as were in force when that article went into operation, and as are not repugnant to them, shall be and continue the law of the State until altered or repealed by the Legislature, and subject to Article III, Section 10, which declares that no person shall be *734 deprived of life, liberty, or property, without due process of law, and the judgment of his peers.
In the general consideration of these provisions, the following statement in the opinion in Stokes v. People,
The right of trial by jury is not conferred by the Constitution; but that right as it existed at common law when the Constitution was adopted is preserved by that instrument.Lawhead v. Grand Lodge,
The section of the Constitution last referred to unquestionably secures to a defendant in a criminal prosecution the right to a trial by a fair and impartial jury. By the foregoing provisions of the Constitution it was intended that the Legislature should have the power to change the common law methods with regard to trial by jury to the extent that its action does not run counter to or contravene the limitations stated in and imposed by the language of the Constitution. These provisions and the limitations which they impose, require a legally qualified jury of twelve men from the county in which the alleged offense is committed, for the public trial, without unreasonable delay, of the accused in that county, unless it clearly appears that a fair and impartial trial by a jury of the county can not be had, or unless, upon the petition of the accused, and for good cause shown, the trial is removed to some other county. It is also manifest that a qualified jury means a fair and impartial jury and that a public trial without delay, means a fair and impartial trial. State v. Woods,
It therefore follows that the validity of Section 20, Article 1, Chapter 52 of the Code, 1931, which is challenged in this proceeding, must be determined in the light of these constitutional provisions, and by the proper application of the principles just stated.
The statute in question provides in its pertinent portion: "In any criminal case in any court, if in the opinion of the court, or the judge thereof in vacation, qualified jurors, not exempt from serving, can not be conveniently found in the county in which the trial is to be, the court, or the judge thereof in vacation, shall enter an order of record to such effect, and may cause so many of such jurors as may be necessary to be summoned from any other county."
Though this legislation has been heretofore considered by this Court in the case of State v. McCoy,
In the opinion in the McCoy case it is stated that, in effect, the summoning of a jury from another county amounts to a change of venue, and this statement is relied upon by the petitioner in support of his contention that the statute is unconstitutional. The statement ignores and tends to confuse the clear cut distinction between a change of venue in a criminal case and a trial of the case in the county of the alleged offense by a jury summoned from another county. They are entirely separate and distinct, although the grounds required to obtain either at common law appear to have been the same. The one, a change of venue, when granted, results in the removal of the case for trial from one county to another and, under the express language of the Constitution, can be effected only upon the petition of the accused, and for good cause shown; the other, often referred to as a change of venire, does not, if permitted, shift the place of the trial from one county to another. When a change of venire occurs, the trial remains in the county of the alleged offense with all the attendant benefits to the accused of holding it in that county, except the advantage of a local jury, but the jury is drawn from another county at the instance of either the State or the defendant, or without request from either, by the court on its own motion. The statement referred to above, not being a point of decision in the McCoy case, should be disregarded.
Though no prior decision by this Court, in which the question of the constitutionality of the challenged legislation has been passed upon, is available, recourse may be had to the decisions of the appellate courts of other jurisdictions in which somewhat similar statutes have been considered. In Virginia an almost identical statute, which has been in effect for many years, and at least since before the year 1853 when the case ofWormeley v. Com., 10 Gratt. 658, was decided, has been given recognition and effect by the Supreme Court of Appeals of that State in a number of cases. In at least two of these cases it was held that under the statute the trial court was invested with a broad discretion in causing *737 a jury to be summoned from a county or a corporation, other than the one in which the alleged offense was committed, and its action in providing a jury from another jurisdiction was sustained. Chahoon v. Com., 21 Gratt. 822; Page v. Com., 27 Gratt. 954.
In Craft v. Commonwealth, 24 Gratt. 602, a murder case, under a statute which provided that in a criminal case in any court, if qualified jurors not exempt from serving can not be conveniently found in the county or the corporation in which the trial is to be, the court may cause so many as may be necessary of such jurors to be summoned from any other county or corporation, it was held that the corporation court of the town of Danville, in Pittsylvania County, had the authority to direct jurors to be summoned from a portion of the county outside the corporation, when an impartial jury could not be obtained within the corporation. In Page v. Com., 27 Gratt. 954, a case in which the defendant was sentenced to death, the authority of a circuit court to direct jurors to be summoned from another county or corporation, under a similar statute dealing with criminal cases in that court, was sustained. InWormeley v. Com., 10 Gratt. 658, it appeared that it would be very difficult, if not impossible, to get jurors free from exception in the county where the court was sitting; in Chahoon v. Com., 21 Gratt. 822, there was a showing that it would be inconvenient, if not impossible, to get a jury from the city of Richmond, the territorial subdivision in which the alleged offense was committed; and in Sands v. Com., 21 Gratt. 871, there was a similar situation. In all those cases, the authority of the trial court to order a jury to be summoned from another jurisdiction under the statute was upheld by the appellate court.
In the later case of Richards v. Com.,
"Manifestly it was not intended by the provisions of section 4024 of the Code that an accused person should be deprived of the right of 'a trial by a jury of his vicinage' (that is, of the county or corporation where he is to be tried) secured to him by the Constitution (section 8, art. 1 [Va. Code 1904, p. ccix]) and the laws of the state (Code 1887, ยงยง 4018, 4019, and 4024 [Va. Code 1904, pp. 2114, 2115, and 2121]), merely because there had been two previous protracted trials in which the juries had failed to agree, and because in selecting the jury for the first trial 27 persons had to be summoned in order to get a panel of 16 qualified jurors, and in obtaining a jury for the second trial 48 persons were summoned, only 41 of whom, it seems, had to be examined in order to get a panel of 16 jurors free from exceptions. If these facts alone are sufficient to authorize a trial court to summon a foreign jury, the right intended to be secured by the Constitution and laws of the state would be of little value to the accused, and there would be comparatively few cases in which there was much public interest, or about which there was much excitement, where the court would not find it necessary to summon, or at least feel justified in summoning, a jury from another county or corporation."
In Puryear v. Commonwealth,
The petitioner cites and relies upon the case ofAlthoff v. State of Indiana,
*740"It certainly was the clear intent of the framers of our Constitution to guarantee to one accused not only a trial in the county but by a jury of the county where the alleged crime was committed when such a jury would be obtained. Whether or not a statute would be valid which would authorize the court to call a jury from another county when a fair and impartial trial could not be had in the county where the crime was alleged to have been committed, we need not decide. * * *"
Consideration of the case indicates that the statute was condemned because it undertook to empower the trial court to cause jurors to be summoned from another county when, without more, the judge of such court was satisfied, after an investigation made in good faith for the purpose, that it was merely improbable that a fair and impartial jury could be had in the county of the alleged offense. That the majority of the Court was unwilling to uphold the statute for that reason is evident from this language of the opinion:
"The right of an accused to be tried by his neighbors and peers is ancient and sacred, and if there is any exception to the common-law rule, it is only when a fair and impartial jury cannot be obtained in the county and not when it is only improbable that such a jury cannot be obtained."
The authorities cited and discussed earlier in this opinion indicate that the common law rule, not an exception to it, authorized the court to remove the trial from one jurisdiction to another or to summon a jury from another jurisdiction when necessary to obtain a fair and impartial trial. It is also pertinent to observe that, as pointed out in the dissenting opinion in the Althoff case, the constitutional provision under consideration in that case did not, in express terms, require the trial of the accused to be by a jury of the county in which the offense was committed.
In Kentucky, under a constitutional provision which declared that the accused shall have a speedy public trial by an impartial jury of the vicinage, a statute which provided that if the judge of the court be satisfied, after having made a fair effort, in good faith for that purpose, that, from any cause, it will be impracticable to obtain a jury free of bias in the county in which the prosecution is pending, he shall be authorized to order the sheriff to summon a sufficient number of qualified jurors from some other county, was held to be valid and constitutional by the Court of Appeals of that State, in the case of Moseley v. Commonwealth, 27 Ky. L. 214, 84 S.W. 748. The validity of the statute was sustained *741
by the same Court in the prior cases of Brown v. Commonwealth, 20 Ky. L. 1552, 49 S.W. 545; Massie v. Commonwealth, 18 Ky. L. 367, 36 S.W. 550, and Roberts v. Commonwealth,
In State ex rel. Hornbeck v. Durflinger,
"If, however, within the meaning of this provision of the Constitution, the right guaranteed to the accused is not an absolute right to be tried in all cases by a jury of the county in which the offense is alleged to have been committed, but is a qualified right, subject to and conditioned upon the possibility that a fair and impartial trial can be had in that county, then and in that event section 7263, although authorizing a change of venue on application of the state, would not for that reason be in conflict with or repugnant to the above provision of section 10 of the Constitution."
The Court construed the word district in that constitutional provision to include a place or jurisdiction other and distinct from that of the county, and held the statute, to the extent that it authorized a change of the place of trial, on the application of the State, from the county of the offense to an adjoining county, when a fair *742 and impartial trial can not be had in the first mentioned county, not to be in conflict with the Constitution of that State.
In Hewitt v. State of Florida,
"By the common law an accused had the right to be tried in the county in which the offense was alleged to have been committed, where the witnesses were supposed to be accessible, and where he might have the benefit of a good character, if he had established one there; but, if an impartial trial could not be had in such county, it was the practice to change the venue to some other county, where such trial could be obtained. The right of trial in the county where the offense is alleged to have been committed, when an impartial jury can there be had, is secured to the accused by section II, Declaration of Rights (constitution of 1885); but it is not the design of this provision to force a trial in a county where an impartial jury cannot be obtained, as to do so would defeat the greater and more important right of a speedy trial by an impartial jury."
In that case the trial court, upon a finding that a qualified jury could not be obtained in the county in which the proceeding was pending, transferred the trial to another county, and this action was approved by the appellate court.
If the right of the accused, at common law, was an absolute or unconditional right to be tried by a jury of the vicinage, or, in modern usage, the county of the *743 alleged offense, that right has been modified by the Constitution of this State to the extent that it is subject to the essential requirement that the jury of the county must be a fair and impartial jury. If, however, the right of the accused, at common law, was not an absolute or unconditional right to be tried by a jury of the vicinage or the county of the alleged offense, but was subject to the requirement of a fair and impartial trial, and that, when necessary for that purpose, the trial could be removed, either at the instance of the prosecution or of the accused, to another county, or a qualified jury summoned from another county, which appears to be the correct view and the one supported by the greater number of cases and the textwriters, a statute which gives recognition to this qualified right would be merely declaratory of the common law in that respect. Whichever may have been the true common law rule, a statute which makes provision for a jury from another county for the trial of the accused in the county in which the offense is alleged to have been committed, when necessary to obtain a fair and impartial trial, is not in conflict with the provisions of the Constitution of this State.
Section 20, Article 1, Chapter 52, Code, 1931, reasonably construed and properly applied is not violative of the right of an accused to trial by jury, secured to him by the Constitution of this State. In interpreting and applying the statute, care must be taken to ascertain the intent and the purpose of the Legislature in passing it. State ex rel. McLaughlin v. Morris,
In construing the statute, the validity of which is here assailed, recognition and practical effect must be given to the elementary rule that every reasonable construction must be resorted to in order to save a statute from unconstitutionality. West Central Producers Co-OperativeAssociation v. Commissioner of Agriculture,
From the foregoing discussion it is evident that the contention of the petitioner that the statute is repugnant to the requirement of due process of law imposed upon this State by the Fourteenth Amendment to the Federal Constitution must be rejected. Due process of law has been said to be violated by a State when its conduct in enforcing its own notions of fairness in the administration of criminal justice, or in other ways, is offensive to a decent respect for the dignity of man and without regard for his freedom. Louisiana v. Resweber,
The Federal Constitution does not prohibit a State from regulating and restricting the right of trial by jury in its own courts as it may deem proper. A trial by jury in a State court is not a privilege or an immunity which a State is forbidden to abridge, Maxwell v. Dow,
The undisputed facts, disclosed by the record and set forth earlier in this opinion, clearly indicate the absence of any showing that even a reasonable possibility existed that sufficient qualified jurors could not be found in Mineral County to accord the defendant an impartial trial in that county, at the time the jurors were summoned *747 from Tucker County to attend the Circuit Court of Mineral County for the trial.
When the order was entered requiring the attendance of jurors from Tucker County, and the jurors from that county were summoned, only ninety-six jurors had been examined and only one hundred and twenty-eight of the five hundred and thirteen persons whose names appeared on the list of those eligible for jury service had been called and examined and there still remained three hundred and eighty-five persons from whom sufficient qualified jurors could reasonably be expected to be obtained. No effort was made to exhaust the list, or to call, if necessary, in the manner provided by law, more jurors from the additional number of at least two thousand persons within the county who were available for jury service. The refusal of the trial court to resort to any of these means, or to make any effort, after examining the ninety-six jurors, to secure additional jurors from Mineral County, before causing jurors to be summoned from an outside county, was not justified by the circumstances which were clearly shown to exist. It ignored the requirement that it must clearly appear that a qualified jury could not be obtained in Mineral County. In fact, it was apparent, at the time, that, if ten or more additional jurors had been called, as requesed by the attorneys for the defendant, which request the court refused, a panel of twenty jurors, qualified to the extent that they were acceptable to the court, could have been obtained promptly and with little, if any, difficulty. The refusal of the trial court to make any further effort to secure a qualified jury in Mineral County constituted an exercise of power in excess of that conferred upon it by the statute.
Under Code,
At the present stage of the proceeding in the Circuit Court of Mineral County, the defendant, the petitioner, here, has no remedy, unless it be prohibition, until after a trial has been had and a final judgment upon a conviction has been entered, when, if such should be the result of the trial, the remedy of a writ of error would become available. The law does not require him to submit to that burden or to await the final outcome of the trial before obtaining adequate relief. Though a court has jurisdiction of the subject matter in controversy, when it clearly appears that in the conduct of the case it has exceeded its legitimate powers with respect to some pertinent question, and there is no adequate or complete remedy in the ordinary course of procedure, the writ of prohibition will lie under the general law and under the statute. See County Court
v. Boreman,
For the foregoing reasons a writ is awarded to prohibit the respondents from proceeding further with the trial of the defendant by a jury summoned from Tucker County or from any county other than Mineral County, until it clearly appears that a legally qualified jury for his trial can not be obtained in Mineral County.
Writ awarded.