47 W. Va. 731 | W. Va. | 1900
On the 11th day of July, 1898, John Hill, Carrie Hill,. Margie Burnett, Mose Burnett, and C. C. Burnett were jointly indicted in the criminal court of Fayette County) the indictment charging that on June 27, 1898, in the said county, they did unlawfully and feloniously combine and conspire together for the purpose of murdering one Joseph Morris, and, in pursuance of said combination and conspiracy, on the day and year and in the county aforesaid, fel-oniously, wilfully, maliciously, deliberately, and unlawfully did slay, kill, and murder him, the said Joseph Morris, against the peace and dignity of the State. On the 20th of January, 1899, the following order was entered in this case: “It appearing that the Honorable J. H. Dunbar, the regular'judge of this court, was interested as an attorney in this case before his election as judge, and therefore disqualified to sit as judge in this trial, and the counsel for the prisoners and the state having agreed upon the Honorable C. R. Summerfield, a member of the bar of this court and a practicing attorney of this State, to try, hear and determine this cause, thereupon the said C. R. Summerfield took the oath as prescribed by chapter 20 of the Acts of the Legislature of 1895.” And the same day the defendants, John Hill and Carrie Hill, elected to be tried separately from the other defendants, and the prisoners Margie Burnett, Mose Burnett, and C. C. Burnett were led to the bar of the court, in custody of the sheriff, and demurred to the indictment against them, and moved the court to
In considering this case, the first question which presents itself is whether the plaintiffs in error were tried before a court of competent jurisdiction, properly constituted and empowered to pass upon the grave and important questions arising therein, involving the life and liberty of the prisoners. Was the special judge who presided at the trial properly selected? It is true that section IS of chapter 86, of the Acts of 1891, establishing a court of limited jurisdiction in Fajmtte County, provides that when the judge is; from sickness or other cause, incapable of acting, or is absent, a special judge may be elected in the same manner as a judge of the circuit court. Also chapter 20, page 38, of the Acts of 1895, provides that, when the judge of the criminal court cannot properly preside at the trial of any cause therein, “the attorneys present and practicing in said court may elect a judge by ballot to hold said
Let us next inquire whether, in the case of a party charged with murder, his counsel can agree with the prosecuting attorney upon a special judge to'try and determine the case. Bish. Cr. Proc. § 893, speaking of trial by court with consent, says: ‘‘One form of waiver is, where authorized by statute, and the Constitution not withholding-any. needful jurisdiction from the tribunal, the defendant consents to be tried by the court without a jury he cannot afterwards complain. Such waixer must be personal..
public, have an interest in the preservation of the liberties, and the lives of the citizens, and will not allow them to be taken away ‘without due proiess of law’ (Const, art. 1, § 6), when forfeited, as they may ' be, as a punishment for crimes.” He also quotes from 1 Bl. Comm. 133, that “natural life, being the immediate donation of the great Creator, cannot legally be'disposed of or destroyed by any individual, — neither by the person himself, nor by any other of his fellow creatures, merely upon their own authority. These considerations make it apparent that the right of a defendant in a criminal prosecution to affect by
The record shows, again, that the party who heard this case did not, before proceeding to discharge the duties of the office, take the oath prescribed by the Constitution (article 4, § 5), which provides that every person elected or appointed to any office before' proceeding to exercise the authority or discharge the duties thereof, shall make oath or affirmation that he will support the Constitution ot the United States and the Constitution of this State, and that he will faithfully discharge the duties of his said office
The case having been heard and determined by a party,, as special judge, who had no jurisdiction to try the same,, it would serve no good purpose to pass upon the validity of the instructions given; but as the cause must be remanded, to be tried before some competent tribunal, I regard it as proper, upon the motion to set aside the verdict as contrary to the evidence, to call attention to the evidence relied on by the prosecution to convict the prisoners of the conspiracy and murder charged, and, in doing this, attention is called to the dying 'declarations of the deceased, which will, no doubt be attempted to be proven on a second trial, and which were allowed to be detailed by Dr. Brown, in his testimony. Dr. Brown says, in asking Morris about the shooting, and after locating the place where it occurred, he inquired: “ ‘Do you have any idea who shot, you?’ He said: ‘I do. Of course, I do, but I am not sure.. I was shot with Burnett’s little rifle, and I think Charley Burnett did the shooting.’ I said, ‘Why do you think that?' He said, ‘Because he has threatened to do it.’ Then I asked hi.m if he had seen any one on the road who he would, suspicion of having shot him. He said, ‘No.’ He had! told me of a row that he and Mrs. John Hill had had., I says: ‘Do you think Mrs. Hill did it?’ He said, ‘No; she didn’t do it’ Isays, ‘Do you think John did it?’ He says, ‘No, sir; neither of them didn’t do it. They are mean enough, but they didn’t do it. I think Charley Burnett did it’ ” This is the only testimony that implicates Charles Burnett in the homicide, except the testimony of George Flint, who states that Mrs. Hill told him that Charley and Mose Burnett would be on the mountain, waiting for him. Now, these dying declarations of Dr. Morris were inadmis
The testimony of George Flint against plaintiffs in error is only as to what he was told by Mrs. Hill, in the absence of the prisoners, Charles and Mose Burnett, as to their watching for deceased on the mountain. The alleged conspiracy to take the life of Morris is not shown by competent testimony, and in fact no testimony of any kind shows that the prisoners, Charles and Mose Burnett, entered into such conspiracy with Mrs. Hill or any other person. The testimony of George Flint should have been •excluded, therefore, —as to what he states he was told by Mrs. Hill. I have thought proper to' call attention to the incompetent testimony soug-ht to be introduced before the jury upon this mistrial of the case, in order that the same testimony and dying declarations may not be relied on, should a second trial occur. The judgment is' reversed, the verdict set aside, and a new trial awarded the plaintiffs in error.
I agree to reverse, because, while the Constitution does provide for holding circuit courts where the judge is absent or cannot porperly preside, I do not think that applies to a criminal court (I do not mean a circuit court.) If the attorneys can, in a felony case, agree on a special judge, I think the order sufficient to constitute him such, though it does not call him, “special judge” as it says he was selected “to try hear and determine” the case in the words of the statute thus making him special judge. His functions and powers make him such. I do not think a special judge has to take the constitutional oath of regular permanent officers but only that prescribed by the act. I think the dying declarations and declarations of Mrs. Hill as to conspiracy not admissible though I do not see that there was objection to it in the court below or exceptions. I think the numerous instructions should be passed on for purposes of a future trial.
Reversed.