50 W. Va. 222 | W. Va. | 1901
In the.case of the State v. C. E. Haddox, warden of tbe penitentiary, being a proceeding by mandamus to compel tbe execution of George Carter, convicted of murder in tbe first degree and sentenced to be banged, tbe question is presented as to where tbe legal duty is reposed to refix tbe time for the execution of a judgment imposing the death penalty when tbe time fixed has
When this Court affirms a judgment of a trial court either in a civil or criminal case, it does not make a judgment of its own, but simply ascertains from an inspection of the record that there is no error that will authorize this Court to interfere with the judgment of the trial court or the execution thereof. Its’ action is purely negative and in no sense affirmative except in name. It does not try the prisoner. He is not before them in person nor entitled to be. At his instance it examines the record for alleged or apparent errors, and finding none it enters an order of affirmance, in effect of non-interference, and permits the trial court to proceed with the execution of its judgment. If on the other hand the case is reversed either in whole or in part, it is then authorized to enter such judgment as the trial court should have rendered and remands the case to the trial court to be executed. In appeal cases it is not authorized to carry into execution either its own or the judgments of the trial court, but in a proper case it may compel the trial court to do so. State v. Prater, 27 So. Ca. R. 599; 19 Enc. Plead. & Prac. 518. The Alabama cases do not apply. By statute the trial court was required to fix the date of execution as a part of the sentence. One of the errors relied on was that such court had omitted to do so. The supreme court held it had the right to amend the judgment and affirm it. State v. Russell, 33 Ala. 266.
In the absence of a statutory provision authorizing this Court to fix the time of execution, although probably injurious to no one or erroneous to the extent that any one would have the right to complain, yet nevertheless it would be a usurpation of ministerial power not conferred on the court by common, statute or constitutional law. Moett v. People, 85 N. Y. 373. Section 7, chapter 160, of the Code, provides that “The court from which a writ of error lies, shall affirm the judgment if there be no error therein.” This is almost identical with the provision in civil cases and what follows after this clause relates to such cases as may be reversed in whole or in part.
When a .case either criminal or civil is affirmed, the power of this Court over it is at an end. The judgment of the lower court
If the statute makes no provision with regard to the matter the sheriff or executioner must fix the time as at common law.
See Judge Beannon's opinion in the case of the State v. Shawn, 44 W. Va. 12.
Section 10, chapter 160, Code, provides, “And the said warden or deputy warden, as hereinbefore provided, shall proceed unless a suspension of the execution be ordered, at the time and place named in said sentence, to cause the convict under sentence of death to be hung by the neck, as prescribed by section nine of this chapter.”
This clearly implies that it is the duty of the trial court to fix the time of the execution of the sentence at least in the first instance. The duty thus being imposed on it by the statute, it continues until the final execution of the judgment as the statute makes no other provision. The day first fixed having become impossible by the appeal of the prisoner, it becomes absolutely necessary for the trial court to fix another day when its judgment and sentence shall be carried into execution.
As is said in the 19 En. Plead. Prae., 518, “Where the appellate court simply affirms- the judgment of the court below, thereby declaring it a valid judgment of that court and free from error, such judgment stands as of its original entry without further order of the lower court making it its judgment; and ordinarily in such case there is nothing further to be done by the lower court, and it does not again give judgment by sentence. The remaining duty of the lower court is to take tlie necessary steps and make the necessary orders to carry the judgment into execution, except in cases where this is done by the appellate court.” Also page 480, “Where the court is authorized to fix the day of execution it is in general to be done by
The conclusion of the whole matter is that the trial court when the day fixed by it for execution has passdd, as soon as convenient after the judgment and 'sentence has been affirmed by this Court, by its order entered of record, without requiring the prisoner to be brought before it, should fix a further day for the execution of its sentence and certify the same to the warden of the penitentiary.
The mandamus is refused.
Since I wrote the opinion in State v. Shawn, 44 W. Va. 12, the law has been changed by requiring the trial court to fix the day of execution.
Writ Denied.