*1 attorneys, the ratio based on the two between awarded spent. time of their problem, capable formulariza- simple not a
This is tion. policy, clear, public that a blame- a matter of
It is attorneys’ pay fees. It have to two less client should attorney’s compensation withdrawing clear that a is also good be assessed relation faith should for his work by lawyers required toward effort both the time and process; from the litigation and assessed complete compared ultimately obtained perspective of the rеsult accomplishments the with- the intermediate have to be determination will drawing counsel. This basis, ad hoc because we trial court on an made each applicable to all fact situa- a standard cannot draw tions.
Reversed and remanded. ex rel. Leo Johnson Judge, etc. Hamilton,
The Hon. John M. 14704) (No. April Decided 1980. *2 Jay Montgomery Brown for relator.
Chauncey Browning, Attorney General, H. N. Thomas Trent, Attorney General, George Sponaugle, Assistant I. Prosecuting Attorney, George II, Sponaugle, I. Assistant Prosecuting Attorney, respondent. for Neely, Chief Justice: Dowdy
In the Robinson, case ex rel. (1979) _ W.Va. _, adoрted we “both the ‘same evidence’ and test the ‘same transaction’ test determining for whether the ‘same offense’ is involved jeopardy for purposes double an accompanying rule greater that whichever test affords the defendant protection potential unconstitutional double applied.” explained must be We the “same pointed transaction” test illustration and if out that kidnapping a defendant were arrested for both and rob bing then, a victim at the same time under the “same be the test, two would “same offenses trаnsaction” qualified that jeopardy purposes. We offense” for double however, by indicating “same trans statement, prosecution crimes one not mandate action” test will closely though even growing different occurrences out of person time, example of a and we used the related p.m. committing unrelated murder at 6:00 then p.m. The Court said: at 6:30 second murder people at to murder two If a were presented, would be same time closer case sepa to have whether were depend upon the naturе prosecutions would rate example, presented. if the For of the evidence grounds on the were self-defense defense defendant, then had attacked the two victims try twice unfair it would seem transaction, essentially but we day. (Dowdy question to a future leave that _ W.Va. _, Robinson, supra, S.E.2d 170.) exactly hypothetical case have use
We now before *3 Dowdy and we presented in our discussion which was 6, 1979, question. On March compelled to are answer Jury by the Grand of Pendle was indicted Leo Johnson County for the murder separate indictments ton on two April 26, Roy and Earl Huffman. On Lee Huffman of guilty found of the first was tried and 1979 Leo Johnson Roy Lee Huffman with a recommenda degree murder of Earl mercy. Roy the son Lee Huffman was tion of out of a run shooting incident arose Huffman and the Johnson, defendant, Leo ning dispute between the right-of-way. Earl Huffman over a.m., Earl approximately 7:00 March On sons, Roy were Lee and John and his two Huffman disputed property, with the eldest clearing brush on approached using Leo chain saw. Johnson Huffman and Earl between Johnson argument ensued trial at the first Paul Huffman testified Huffman. John fаther, Earl, first shoot his that saw Leo Johnson he Roy brother, Lee. him, at his and shoot twice shoot at According representations counsel, Leo John- son claims only that he fired at Earl Huffman in self defense when he was attacked Earl Huffman wield- ing saw; however, the chain Leo Johnson did not take testify the witness stand to his own behalf at the first upon Relying trial. Dowdy case State ex rel. Robinson, supra, sought the relator prohibition a writ of prohibit from this Court to a second for trial the murder grounds of Earl jeopardy. Huffman on the of double
I
Initially
important
pоint
it is
to
out that
the first
trial
killing
Roy
for the
Lee Huffman occurred two months
opinion
Dowdy
before our
v. Robinson was handed
Furthermore,
down.
stipulated
counsel
in this Court
joint
that
the relator did not move for a
trial
the two
separate
merely
requested
indictments
from the
prosecutor
an indication
to
which indictment would
be tried first.
arguments
infers
Court
from the
stipulation
counsel and the
in open court
it was
prior practice
right
assumed that under
the State had a
try
alleged
for each
murder
and, prior
Dowdy, supra,
procedure
such a
have
would
рerfectly acceptable
Virginia
been
under West
law. Daniel,
(1959);
Dowdy was intended establish avoiding multiple orderly, prospective procedure arising out of criminal аcts prosecutions for successive Both because general criminal transaction. the same time Dowdy v. had not been decided Robinson occurred prosecution under consideration now first have to was no motion because there together, we to make conclude two cases tried us Dowdy before would have the in the case retroactive knowledge proce- charging the State effect they fore- law could not have change in the which dural seen. determining apply change in deci whether principle retroactively, the fundamental
sional law Pnakovich v. State have looked is reliance. which we _ _, Compensation Comm’r, W.Va. Workmen’s Co., _ (1979); Bradley Appalachian Power S.E.2d 127 _, or the Since S.E.2d plan crimi the course of civil or should be able proce litigation with reasonable reliance current nal impor rules, prosecution is an the reliance of dural today’s apply considering whether tant element retroactively. is no Therefore since there substan rule function, finding impairment of the truth Williams tial States, 1148, 28 L. Ed. 2d U.S. 91 S.Ct. v. United сhange (1971), we this is not conclude application. In this requiring retroactive decisional law particular must for the be tried instance defendant Dowdy cannot A tried before other murder. punishment for each be relieved fortune of notwithstanding opportunity Consequently, offense. prop the Court to determine which this case affords handling procedure a case in which prospective er
687 people time, prohi two are killed the same the writ of prayed bition for in this case denied. is
II
Dowdy
may
given
legiti
case itself
have
risе
sufficiently explicit
mate confusion
it
because
was not
analysis
jeopardy.
its
prohi
of double
The constitutional
Const.,
III,
bition in W.
against
Va.
Art.
sec. 5
first,
protection
has two
a
elements:
multiple
Bornee,
trials
for the “same
Ex
offense”
Parte
(1915); second, protection
76 W.Va.
It
be
that
are
should
obvious
there
lesser
included
part
greater
crimes,
which are
that mali
offenses
so
wounding
integral
petty
part
murder,
cious
is an
lar
integral
ceny may
part
robbery,
be an
of armed
and
larceny may
integral
attempted
part
burglary.
be an
always
the law
has
bеen
cannot be
offense
and
punished
both a lesser
included
of the first are neces
greater
the elements
crime when
sarily
in the elements
second. State
included
(1898); Myers v.
Cross,
Ill regarding multiple policy trials for offenses aris- Our recogni- ing from from the same transaction emanates occasionally practice has been the to divide tion many into offenses one criminal transaction as distinct multiple provide the State with possible as in order Taylor, opportunities a conviction. State secure Watson, (1947); and W.Va. Frequently trial of S.E. 637 establishing capable one offense alibi, defense, prove him innocent of such as that would however, offenses; put he all is often time other against charges expense defending the other as equiva- plеa acquit, criminal well. A law autrefois Connelly judicata, of res lent of the civil law’s doctrine Director Public Prosecutions, [1964] A.C. 1254 (see 1356) opinion of Lord Devlin at protec- an effective litigation tion vexatious in criminal trials be- by cause criminal most trials are general decided ver- dict which makes it difficult to decide which discrete issues jury. were determined procedure multiple either count indictments indict- simultaneously provide ments tried the defendant with opportunity spare make his defense once and thus himself upon trials. Based the common law doc- convict, trine of English adopt- courts have autrefois ed the “same orderly transaction test” a rule of crimi- procedure exactly nal policy the same reasons which today notwithstanding they we enunciate are not compelled by any equivalent to do so own of our Connelly, supra. clause. assigned
For the prohibition reasons above the writ of petitioner prays for which the is denied.
Writ denied. Justice, concurring: Miller,
IWhile concur in the majority, result reached that Leo Johnson is not entitled the double bar, complete I am in disаgreement legal with the rea- soning. *7 majority irrationality The continues the same that it _ W.Va. Dowdy Robinson,
started ex rel. (1979). _, my Dowdy, dissent I attempted point illogic majority’s out view jeopardy where double a asserted because of break in having nothing the initial trial to do with a factual de termination the defendant’s favor. majority recognizes
The now the inherent weakness of Dowdy Dowdy may when it states: “The case itself have given legitimate it rise confusion because was not sufficiently explicit analysis jeopardy.” in its of double [Majority Opinion is, however, at com- 5]. Confusion pounded analysis jeopardy. with its current of double III, majority, state, that Article Section does the To Constitution, relating to double Virginia 5 of the West first, protec only a elements: jeopardy, “two consists multiple offense’ against [and] trials for ‘same tion punishments multiple for the second, protection against ” Sylla 128], ignores [Majority Opinion at ‘same offense’ _ W.Va. _. 238 Griffith, of Conner bus Point (1977): S.E.2d 529 III, Jeopardy in Article Clause “The Double Constitution, pro- Virginia 5 of West Section immunity prosecution further where from
vides jurisdiction acquitted aс- having has a court prosecution protects second cused. It pro- It after conviction. also for the same offense of- multiple punishments for hibits fense.”
Moreover, pronounce transaction’ “[t]he ‘same adopted Dowdy, supra goes to the issue test which we but it does not trials for the ‘same offense’ separate preclude punishments crimes” sophistry. ig- 128], legal [Majority Opinion at is sheer question of is the “same what nores the fundamental will transaction” which constitute offense” or the “same pun- warranting only one trial and one crime ishment. Instead, question. majority this does not answer procedural paradox. A who devises clever for all of them multiple crimes must be indicted
commits they at trial unless the defend- are to be tried severance, severance, requests if he ant moves subsequent of a “contemplates an automatic waiver this Opinion plea jeopardy” [Majority 129]. No of double proposition.1 authority extraordinary for this cited position Supreme Court has taken forceful The United States right jeop against applying to double waiver of the constitutional ardy, holding guilty plea would not waive even a counseled plea. subsequently right Menna v. raise the double York, L. Ed. 2d S.Ct. Most New U.S. nature of the fundamental follow the view that because courts closely right, waiver will be scruti- a claim of *8 majority
What attempted has is concept multiple punishments of for the same offense concept multiple from the trials for the same offense. The in recognize flaw this effort is the failure to that jeopardy the core principle term, of the double is the same, offense.”2 “samе If the offenses are there prohibition against multiple is no either trials or multi- ple punishments. suggest no is answer to that all arising crimes out of the same criminal transaction together majority must be tried unless willing say what it means the “same criminal transaction.” legal reasoning any We are offered neither citations, nor solely conclusionary assertion: “In a case involv- ing murders, currently such as the one under consider- ation, person we hold in the future a must be tried alleged both [Major- murders the same trial ....” ity Opinion 128]. attempted divorce trial from the
multiple punishment
clearly contrary
standard is
Supreme
United States
jeop-
Court’s view of the double
ardy standard,
Ohio,
enunciated in Brown v.
432 U.S.
See, e.g.,
(7th
Anderson,
nized.
United States
(1977): test are the same under this
“If two offenses *9 barring at purposes of consecutive sentences for they necessarily the single trial, will be a barring prosecutions. purposes of successive for 187-188, Nielsen, 176, Ed 33 L In re 131 US See 118, v United Ct 672 cf. Gavieres 9 S 421 States, L Ed 31 S Ct 220 US impose judge is the forbidden Where punishment for two crimes at the end cumulative single prosecutor the is forbid- proceeding, of a result in successive den strive for the same proceedings....” Drubel, Theory Dou & Toward General
See Westen of Jeopardy, Rev. 111-122. ble 1978 S.Ct. present appropriately decid- case could have been jeopardy principlеs. conventional double is
ed under had deal we have with the the first occasion plea where a of double problem of double homicide Houchins, interposed. In jeopardy has been (1926), successfully S.E. plea trial. The facts were to bar a second asserted assaulted, and, believing that had been that Houchins harm, bodily danger great or fired of death she was aggressor, Anna Romans. Both shots at her two shots missed, bystanders, two Lewis Romans and but killed killing tried for the Houchins was first Emma Carter. acquitted. and Carter
Subsequently, Houchins was tried for death rejected plea jeopardy was Lewis Romans. Her double voluntary manslaughter. guilty On found and she was plea, upheld stat- appeal, the double this Court ing: pleaded bring the case the facts
“We think that
exception
regarded
an
what
within
acquittal
general
rule,
conviction or
of,
upon,
charged
with the murder
assault
one
subsequent
prose
not a
to his
person,
bar
of,
upon,
cution
the murder
or assault
anoth
recog
er
at the same
[T]he
time....
well
exception
general
nized
rule [is]
where the
killing
is the result of one shot or stroke
dirеcted
act or volition towards one
person....”
176-77,
[
“A case can be conceived where
such a
might
good.
example,
engineer
be held
For
railway
might
charged
train
be
negligent-
ly
feloniously causing
pas-
the death of one
senger
wreck, and, being
in a
tried and found
jury еntirely
accident,
blameless
such
*10
acquittal might, perhaps,
perfect
constitute
de-
subsequent
killing
fence to a
indictment
an-
passenger,
other
who was on the same train. But
presents
question.
case
killing
this
no such
separate
case,
was the result
aof
act
in each
degrees
provocation
committed under
not nec-
essarily identical,
accompanied
apprehensions
fine,
necessarily
every
not
the same.
element
appears
to constitute
two
offences
on
case,
plea
the fаce of
the
to exist
this
and
properly
therefore
the demurrer was
sustained.”
419-20,
at
[33 W.Va.
Houchins
contains
extensive
review of
from
cases
jurisdictions
other
and
consistent with more recent
cases which have concluded that
homicides oc
curring
approximately
at
the same time
not
and
the
may
tried,
pun
result
act
volition
be
and
ished, separately. E.g.,
Illinois,
571,
Ciucci v.
2
356 U.S.
983,
(1958); People
Carlson,
L. Ed. 2d
P.2d 1399 Cr. Scott 1973).3 (Tex. App. Cr.
Here, problem is to set a workable stan- the crucial are tо treated to when criminal acts be dard determine offense,” majority the It is a task avoids. the “same neatly categorize area. possible the cases this however, test formulated is, doubtful narrow 720, Abbott, 2 Leach King v. & in The Vandercomb (1796), represents majority Eng. Rep. 461 168 There, among jurisdictions. the focus was on view language of the indictment unless convicted on the first indictment could have been second, in the he could be tried proof of the facts set out Most commentators have criti- the second indictment. unduly language formalistic since this test as cized may facts not be identical the indictment proved trial.4 Supreme its Court has broadened
The United States
rule
focus on the elements
Ohio, supra:
crime,
as stated
Brown
determining
whether
test
“The established
sufficiently
distinguishable
are
two offenses
punishment
imposition
permit
of cumulative
States,
Blockburger
was
284
stated
United
(1932):
299, 304,
L
52
180
Ed
S Ct
US
“
applicable
rule is that where
‘The
act
constitutes
a violation
or transaction
general
application
doctrine
This
but an
rule is
relatively
person, although
close in
more than
crimes
See, е.g.,
punished.
Davenport
time, may
separately
be
tried
1975)
(Alaska
(robbery);
Salazar,
State,
543 P.2d
(1975)
State,
(battery);
App. 472,
P.2d
Cousins v.
Ariz.
denied,
2d
cert.
429 U.S.
50 L. Ed.
695 statutory two distinct provisions, the test to be applied to determine whether there are two only one, offenses or is provision whether each requires proof of a fact which the other does not....’ emphasizes
“This test
the elements
of the two
‘If
requires proof
crimes.
each
of a fact
not,
other
Blockburger
does
satisfied,
test
notwithstanding
overlap
substantial
in the
proof offered to establish the crimes....’
Iannelli
States,
770,
United
17,
420 US
785 n
L43 Ed 2d
616,
(1975).”
Certainly, early our cases of Evans and Houchins dem onstrate that we do not follow the concept narrow merely looking language of the indictment. This is made more obvious in State ex rel. Muntzing, Zirk v. S.E.2d quoted where we approval following portion Mowser, (Ct. 1919): N.J.L. A. App. of Err. & рrinciple “The to be extracted from well- is, considered cases the term same of- only fence is not meant the same offence as an entity designated by legal name, and as such but any integral part may also of such offence which subject punish- an offender to indictment Reg. Walker, Moody 457; ment. & R. Rex v. Stanton, 5 Cox C.C. 324. integral part
“When such
principal
of-
fence
affair,
is not a
grows
distinct
out of the
transaction,
acquittal
then an
or conviction
of an offender
for the lesser offence will bar a
prosecution
greater.”
for the
[
Houchins also demоnstrates that where the volitive unbroken, act may likely the offenses be more to be considered as one. Other concept courts have found this of a volitive act to expressed be relevant and have looking as a factor in a test to “the basic interests society protected” to be vindicated requiring *12 perpetrator.” the inquiry conduct of into “the intent and (Alaska 1975). 1204, State, Davenport 543 P.2d point Traynor analogous in Neal v. makes an Justice 607, 20, 612, State, 11, Rptr. 357 P.2d 2d 9 Cal. 55 Cal. 700, (1960), denied, Ed. 2d cert. 365 U.S. 5 L. (1961): S.Ct. 708 who an act violence “A commits dеfendant more than one or with the intent to harm likely per- by to harm to several means cause a culpable than a defendant who sons is more only example, person. For a defendant harms one places that a means of murder who chooses danger, in planeload passengers or results subject injury many persons, properly to to greater punishment than a defendant who only per- single harms chooses means that son.” case, present we are not confronted with a the whereby the two victims were killed. volitivе act the first shot Earl Huff-
The facts show that
defendant
man, Jr.,
neck, killing him.
then
at
He
fired
John
Huffman,
standing
right
feet
who
some 16
was
Huffman,
Huff-
The shot nicked John
side of Earl
Jr.
coat, knocking
ground.
The defendant
man’s
him
Huffman,
standing
Roy
Lee
who was
some
then shot
Huffman,
Jr. This
feet
left
Earl
six
seven
Huffman,
ground,
Roy
who fell to the
last shot missed
away
fatally
up
run
when he was
got
then
and tried to
left
chest. The
by the
in the
side
shot
Roy
initially
for the murder of
defendant was
convicted
Huffman,
it is
trial
the murder of Earl
Lee
Jr.,
Huffman,
jeopar-
that he seeks to bar
former
dy plea.5
case,
recognize
appropriate
as
the United
5 I
in an
has
would
Swenson,
Supreme
397 U.S.
L. Ed.
Court
Ashe
States
(1970),
where there are
victims
2d
the merits as concept estoppel. See trials under collateral Unit additional (5th 1979); Larkin, 1369-71 Cir. State v. 605 F.2d ed States majority Since the has refused what define transaction,” only means I “same can assume departure its views are not too radical a from what expressed I have substantive test to determine what is the “same offense.”6 point disagreement
A mаjority final lies in the retroactivity question. completely treatment _ ignores holding Leverette, our in Adkins v.
_,
directly
which dealt
*13
retroactivity
jeopardy
principle.
Adkins,
of a double
newly
we
found that a
holding
formed double
fully retroactive,
had to be made
since this was the rule
Supreme
mandated
the United
States
Court
Rob
Neil,
505,
29,
inson v.
409 U.S.
35 L. Ed. 2d
A
appropriate.
final
comment
seems
I could
engendering
understand
the confusion that attends
majority opinion
precursor, Dowdy,
its
if there were
poliсy
some sound
it.
behind
I have not been able to
is, except
detect what
a should not
multiple
However,
have to withstand
trials.
most defen-
prefer
undergo
dants will
trial
rather
than
(Mo.
Handley,
1979);
585 S.W.2d
463-65
Simon v. Common
wealth,
(Va. 1979);
People
Vaughn,
92 Mich.
cf.
App. 742,
Buford Wyoming County Education, The Board 14680) (No. May 6, 1980.
Decided *14 plaintiffs in error. Hrko for John S. Attorney, Prosecuting Ray Tiller, Assistant
Harlen in error. Per Curiam: petition for Writ of filed a appellants in this case
The County Wyoming in the Circuit Court Mandamus granted a rule to show The court September 1978. evidence, hearing denied the writ. after cause and Wyoming compel petition purpose was provide bus trans- school County Education Board of