123 S.E. 185 | W. Va. | 1924
The judge of the criminal court of Raleigh county, upon joint request of the prosecuting attorney and counsel for defendant, has certified for review his ruling upon a demurrer to a plea of autrefois acquit tendered and filed by defendant upon being arraigned for trial on an indictment for a felony. The questions propounded as having arisen are: (1) "Does said plea present a good defense to the indictment as a matter of law?" (2) "Do the facts set up and pleaded in said plea raise a question of fact to be decided by the jury, or a mere matter of law to be decided by the court?" (3) "If a person fire two shots, as alleged in said special plea and under the circumstances therein alleged, does the trial and acquittal of the accused for the firing of one of said shots bar prosecution for the firing of the other of said shots?" *376
We find no certified copy of the indictment with the papers. The plea and exhibit in support thereof together with a copy of the court's decision upon the demurrer to the plea constitute the certified record before us. Whether the indictment is for murder and in the statutory form given in section 1 of chapter 144 of the Code we are left to surmise. The court sustained the state's demurrer to the plea. We gather from the plea and from defendant's brief that she was indicted for the murder of Lewis Romans, and upon which indictment she was arraigned, and to which indictment the plea of autrefois acquit was tendered. The plea avers that she had been previously indicted at the October, 1923, term of the court for having committed murder upon Emma Carter, on which she was subsequently tried and found not guilty, and that the alleged murder of Lewis Romans arose out of the same affray in which Emma Carter was killed and that the facts and circumstances of the killing of Emma Carter, of which she was found not guilty, are the same as to the killing of Lewis Romans; that in a personal affray with one Emma Romans who, armed with a razor, had made an attack upon defendant, she, defendant, in defense of her life, fired two shots in rapid succession from a revolver in her hands at said Anna Romans with the intention of shooting her in order to protect her own life, but that both of these shots fired in rapid succession and with the same intent and purpose went wild, one of which killed Emma Carter and the other was fatal to Lewis Romans, and that the acquittal of the one crime so committed is a bar to the prosecution of the other, for which she was then arraigned.
We are confronted at the threshold of this case with the query as to whether we have jurisdiction to pass upon and answer questions certified to us by courts inferior to the circuit court under the provisions of the latter part of section 1 of chapter 135 of the Code. We have carefully considered this query, and answer it in the negative.
The judicial power is vested in the supreme court, the circuit court and the judges thereof, and in such inferior tribunals as may be created by the legislature, and in justices of the peace. The original jurisdiction of the supreme court is *377
limited to cases of habeas corpus, mandamus and prohibition In other cases its jurisdiction is appellate, including quo warranto, habeas corpus, mandamus, certiorari, and prohibition. The numerous cases in which the supreme court has appellate jurisdiction are set out in sec. 3, Art. 8 of the constitution; and it is given "such other appellate jurisdiction in both civil and criminal cases as may be prescribed by law." The method of reaching the supreme court by certification of questions arising upon the sufficiency of a summons, return of service, or challenge of the sufficiency of a pleading as set out in sec. 1, chap. 135, Code, is appellate in its nature. Judicial action is first required on the part of the lower court. The trial judge must first decide the questions raised, and make record of his action. The order recording his decision is interlocutory, but may be of such vital importance and effect upon the final disposition as to make it imperative in the economical administration of justice, that its correctness be speedily verified or denied by the court of last resort before the incurrence of vexatious costs and delays. The statute was designed for that purpose. City of Wheeling v.Telephone Co.,
How shall appellate jurisdiction of the supreme court be invoked? Appeals and writs of error in all cases must be from this court to the circuit courts. The method of procedure by which the supreme court of appeals is reached from a tribunal inferior to the circuit court is through the latter in any case which falls within the appellate jurisdiction of the former. Any attempt to shorten the route by leaving out the circuit court would be in contravention of the express terms of section 12, Art. 8 of the constitution which gives to the circuit courts "appellate jurisdiction in all cases, civil and criminal, where an appeal, writ of error or supersedeas may be allowed to the judgment or proceedings of any inferior tribunal." Under that section "they shall have such other jurisdiction, whether supervisory, original, appellate, or concurrent, as is or may be prescribed by law." Hence, any attempt to annul or avoid the appellate jurisdiction or supervisory powers of the circuit courts is abortive as violative of the organic law. Robinson v. Railroad,
Response to questions certified denied for want ofjurisdiction.