146 W. Va. 534 | W. Va. | 1961
Involved in these original proceedings in prohibition, against the Honorable Max DeBerry, Judge of the Circuit Court of Pleasants County, is the question of whether the petitioners, Joe Smith and Richard Stanley Brooks, at the relation of the State, should be discharged from further prosecution as to certain charges contained in five felony indictments returned by a grand jury of the Circuit Court of Pleasants County. No question of fact exists, the material or controlling facts being admitted by the answers filed in the respective cases. The matters are heard on the petitions, answers, briefs, certain evidence taken before the Circuit Court of Pleasants County, on motion to discharge petitioners from further prosecution, and on oral arguments of the respective parties. The problems of law involved, based on substantially the same facts, are the same in each case, and one opinion suffices.
On March 8, 1960, petitioner Smith was arrested on a warrant issued in Tyler County, charging a felonious assault, and was incarcerated in the Tyler County jail on that charge. Later, the person alleged
On March 16, 1961, during the March, 1961, term of the Circuit Court of Tyler County, Smith entered a plea of guilty to voluntary manslaughter, and was sentenced to the state penitentiary for a term of from one to five years. At the time Smith was sentenced, Brooks was released from custody of the Tyler County authorities, but was immediately arrested in connection with the charges contained in the Pleasants County indictments here involved. It may be noticed that Smith and Brooks were each held in custody in the Tyler County jail from March 8, 1960, to March 16, 1961.
"While petitioners were confined in the Tyler County jail, in connection with the Tyler County charges, a warrant was issued against them in connection with the Pleasants County charges, the charges made in the indictments here involved, and was read to them in the Tyler County jail by the officer to whom it was delivered, and petitioners were fully advised of such charges. Later, at the April, 1960, term of the Pleas-ants County Circuit Court, on the first day of that term, April 26,1960, the five indictments were returned against petitioners, charging the commission of felonies in Pleasants County, being the five indictments mentioned above. Petitioner Smith was removed from the state penitentiary to Pleasants County, and the time for trials in that county on the five indictments was fixed for the April, 1961, term of the Circuit Court of that county, and the motion for discharge from prosecution having been overruled by the Circuit Court of Pleasants County, this Court awarded
The prosecuting attorney of Pleasants County was at all times material advised as to the incarceration of petitioners in the Tyler County jail, hut made no effort to have them removed therefrom for prosecution in Pleasants County, other than to make a request of the prosecuting attorney of Tyler County to the effect that petitioners he surrendered to the Pleasants County authorities for prosecution, which was, apparently, refused.
Prom such facts it may he summarized that petitioners were held in custody in the Tyler County jail for a period of time commencing before the beginning of the April, 1960, term of the Circuit Court of Pleasants County, and held continuously through the September, 1960, term, and the January, 1961, term of that court, no other term occurring in the meantime; that the indictments here involved were returned on the first day of the April, 1960, term of the Circuit Court of Pleasants County, and that the State made no real effort to bring the petitioners to trial on such indictments at the April and September, 1960, terms, or at the January, 1961, term, but did cause trial on the indictments to be set for the April, 1961, term.
Prom such facts two questions arise. First, is the April, 1960, term of the Circuit Court of Pleasants County, the term at which the indictments were returned, to be counted as one of the three terms required and intended within the meaning of Code, 62-3-21, as amended, to require the discharge of a defendant from further prosecution? And, second, were petitioners, by their incarceration in the Tyler County jail, in effect, ‘ ‘ remanded to a court of competent jurisdiction for trial”, within the meaning of that section?
The pertinent language of Code, 62-3-21, as amended, reads: “Every person charged by presentment or indictment with a felony or misdemeanor, and remanded to a court of competent jurisdiction for trial,
As often pointed out by this Court, the purpose of the pertinent statute is to assure a defendant a speedy trial. It is the legislative adoption or declaration of what, ordinarily, at least, constitutes a speedy trial within the meaning of Article III, Section 14 of the State Constitution, and of the Sixth Amendment to the Federal Constitution, and, of course, for the purpose intended should be liberally construed. See Hollandsworth v. Godby, 93 W. Va. 543, 117 S. E. 369; Ex Parte Bracey, 82 W. Va. 69, 95 S. E. 593; Denham v. Robinson, Judge, 72 W. Va. 243, 77 S. E. 970, 45 L.R.A., N.S. 1123, Ann. Cas. 1915D 997; Dudley v. State, 55 W. Va. 472, 47 S. E. 285; 22A C.J.S., Criminal Law, Section 466, el seq; 14 Am. Jur., Criminal Law, Section 134, et seq.
In State v. Gregory, 143 W. Va. 878, 105 S. E. 2d 532, we held: “1. Where an accused under indictment for an offense is without the jurisdiction, and returns to the jurisdiction to answer to the indictment on a day subsequent to the beginning of a regular term of the court having jurisdiction to try him for the offense, the term during which he returned is not to be counted in determining whether accused is entitled to discharge from prosecution by virtue of Code, 62-3-21.” See State v. Loveless, 142 W. Va. 809, 98 S. E. 2d 773; State v. Wiseman, 141 W. Va. 726, 92
In Sands v. Commonwealth (Va.), 20 Gratt. 800, often cited by this Court, considering a very similar question to that here involved, tbe Court said: ‘ ‘ Tbe three terms spoken of in tbe act, cb. 208, §34, Sess. Acts 1866-67, are three terms after that at which tbe prisoner is first held for trial. And though a prisoner has been arrested and committed to jail, or gives bail to appear and does appear, or is brought into court, on the first day of a term of a court, that term is not to be counted as one of the three terms aforesaid.” In the opinion the Court said: * * Before a prisoner is entitled to his discharge, under this section, there must be three regular terms — that is, plainly, whole terms; not parts or fractions of three terms, but three entire terms, of such court after he is so held, without a trial; or, in other words, there must be three periods of a session of such court, having a beginning and ending after that term when he is first held for trial. If the term has commenced (no matter how soon after its commencement the prisoner has been delivered into the custody of the court), that term cannot be counted as one of the three regular terms, after he is held for trial, because a part of that term has already expired and there is but a part of it left; it may be a large part or a small part, depending upon how long the court may sit; still it is not an entire term. And it cannot be said that in such a case a term of the court has passed when only a part of a term has expired: for that would be to hold that a term of a court means a part of a term.” See Bell v. Commonwealth, 8 Gratt. (Va.) 600; Bell’s Case, December Term, 1850 (Va.), 7 Gratt. 646.
Petitioners rely heavily on language found in State v. Crawford, 83 W. Va. 556, 98 S. E. 615, to the effect
Petitioners also rely on the holding in Hollandsworth v. Godby, supra. The problem in that case, however, is clearly distinguishable from the controlling question in the instant case. In the cited case the defendant was arrested by virtue of a warrant issued in Raleigh County, charging the commission of a felony in Raleigh County and, though actually arrested under that warrant in Mercer County and later tried in connection with a charge of having committed a felony in Mercer County and convicted thereof and sentenced to the penitentiary, the Court held, we think correctly, that the holding for a trial under the Raleigh County warrant was a holding on the Raleigh County felony charge, for which he had been indicted, for more than three regular terms of the Raleigh County Criminal Court prior to the time he was brought to trial and,
Were petitioners “remanded to a court of competent jurisdiction for trial”, within the meaning of Code, 62-3-21, as amended? In State v. Gregory, 143 W. Va. 878, 105 S. E. 2d 532, it is pointed out that the word “remanded”, as used in the statute, has been construed to mean “held”. See State v. Kellison, 56 W. Va. 690, 47 S. E. 166. Were the petitioners, or either of them, “held” to a court of competent jurisdiction “for trial”? Clearly the answer must be in the negative as to each petitioner. The petitioner Brooks was “held” merely as a material witness, and the petitioner Smith was “held” only under a warrant issued, before the return of any indictment, realistically, for the purpose of answering an indictment in the event of one being found against him. Moreover, the holding was not in connection with the felonies charged in the five indictments here involved, but in connection with a different felony, a felony committed in a different county. See State v. Crawford, 83 W. Va. 556, 98 S. E. 615; Ex Parte Chalfant, 81 W. Va. 93, 93 S. E. 1032; State v. Kellison, 56 W. Va. 690, 47 S. E. 166.
It is contended that since the petitioners were held in the Tyler County jail on an indictment returned in that county, they were, during the period of time there incarcerated, within the custody of the State and available to the State for trial on the Pleasants County indictments, and, therefore, the regular terms of court of Pleasants County, occurring within the period of such incarceration, should be counted against the State, and counted in favor of the discharge of petitioners from further prosecution.
Custody of the person of an accused by the court, or its equivalent, is essential to the jurisdiction of a
For the reasons pointed out, the rules in prohibition heretofore issued are discharged, and writs of prohibition are denied.
Writs denied.