21 W. Va. 782 | W. Va. | 1883
announced the opinion of the Court:
The first question presented by this record is, whether this Court consider the bill of exception signed by ¥m. E. Lively asa part of, the record. ' This Court takes judicial notice, that Wm. E. Lively is not a circuit judge in this State. The record in this case begins thus: “Pleas before Honorable William E. Lively, elected and qualified a special judge of the circuit court of Calhoun county, held at the court house, on Wednesday the 26th of October, 1881.” And the certificate attached- to it is signed by the clerk of the circuit
So far as the record in this case discloses there is nothing to show how William E. Lively was appointed or by what authority he acted as judge; but the proceedings in the lower court are presumed to have been regular in this respect., unless the contrary affirmatively appears upon the record. It is only therefore incumbent on us to enquire, whether or not under any circumstances by the laws of this State, he could have properly acted as judge in the trial of this case. -His election or appointment and regular qualification will be presumed, the record not showing anything to the contrary, provided such election or appointment and qualification to try the case were warranted by the Constitution and laws of this State. See Sweeptzer v. Gaines et al. 19 Ark. 96; Vandever et al v. Vandever et al. 3 Met. (Ky.) 137; Feaster v. Woodfill, 23 Ind. 493. We know that the regular term of the circuit court of Calhoun county in the year 1881 began on October 25, 1881, or should regularly have been commenced on that day, and therefore, that the 26th day of October, 1881, would have been or might have been during a regular term of said circuit court. Now in The State of West Virginia v. Williams, 14 W. Va. 851, syl. 1, this Court decided, that under the legislation of this State a special judge might be elected by the members of the bar to hold the general term of a circuit court, where from any cause the judge fails to appear or if present cannot preside, and that such legislation when applied to a general term of a court was constitutional. As this case was or might have been tried at a regular term, we must on the principles I.have laid down presnme, that Wm. E. Lively was legally and constitutionally elected and qualified as a special judge, and that he was authorized to try this case, nothingto the contrary appearing in the record, and that tlierforethe bill of exceptions signed by him constitutes a part of the record. ¡So regarding it what was called the plaintiff’s instruction was properly refused, for section 14 of article IIT. of our present Constitution, following in this respect section 8 of article II. of our
This provision of our Constitution confers on a person accused of crime', with reference to the place where he is to be tried, the privileges, which the common law conferred on him, thus making these common law privileges of the accused constitutional rights, which the Legislature cannot take from him without his consent. There never has been a question as to the fact, that all the privileges conferred on the accused by these constitutional provisions were also conferred on him by the common law. For by the common law crimes of every description could only bo prosecuted in the county wherein they were committed; but if an impartial trial could not be had in that county, the case might certainly be removed at the instance of the accused, and it might be perhaps at the instance of the State. But under the constitutional provision which we have cited it is obvious, that the venue can never be changed at the instance of the State without the consent of the accused; but as these constitutional privileges were conferred for the benefit of the accused they can be waived, and -the venue can be changed on his motion or by his consent. See Commonwealth v. Parker, 2 Pick. 550; State v. Potter, 16 Kans. 80; Dula v. The State, 8 Yerg. 511; Perteet v. The People, 70 Ill. 171; State v. Denton, 6 Cold. 539; Wheeler v. The State, 24 Wis. 52. The provision of our Constitution above quoted would seem clearly to confer on the accused the right in all cases to be tried in the county .wherein it is alleged, that the crime was committed, and it would therefore seem to follow necessarily, that any act of the Legislature, which permitted the State without the consent
The object of the constitutional provision is to protect the accused against a spirit of oppression and tyranny on the part of the government, and against a spirit of violence and vindictiveness on the part of the people; and also to secure the accused from being dragged to a trial at a distant part of the State, away from his friends, witnesses and neighborhood, and thus be subjected to the verdict of mere strangers, who may feel no sympathy, or who may cherish against him animosity or prejudice, and also to 'protect the accused from injustice arising from his inability to procure proper witnesses, and to save him from great expense. See State of Minnesota v. Robinson, 14 Minn. 454, and 2 Story on Con. sections 1780-81.
The Legislatures of different States have not regarded statute-laws, which permit offenses within short specified distances of county lines to he presented in either county as violating the real spirit of the common law, or of constitutional provisions, more or less, like the provision of our Constitution, which we have quoted. The evil intended to be corrected by such statutes was, that where crimes were committed on or’near a county line, it might turn out in the proof, after a fair and expensive trial had fully established the guilt of the accused, that the indictment was in the wrong county, and the prosecution would be defeated on that ground alone; and thus a few yards might save great offenders from punishment. See Wm. Armstrong et al. v. The State, 1 Coldwell’s R. 341. Therefore there has very properly been shown a disposition by the courts to sustain such statutes, and it has been done whenever there was in the Constitution any provision, which could be construed as conferring any discretion on the Legislature as to the venues for the trials of crimes. But on the other hand courts have been compelled in some of the States to hold such statutes as null and void, because they were in direct conflict with the Constitution. See State of Minnesota v. Robinson, 14 Minn. 447; Armstrong v. The State, 1 Cold. R. 338; Dougan v. State, 30 Ark. 41.
In fixing the venue for the trial of crimes the provisions of our Constitution were similar to those of Virginia, but in the Constitution of Virginia, of 1875 the word county is substituted for the vague word “vicinage.” In article 6 of the amendments of the Constitution of the United States substantially the same provisions were inserted as are found in section 9 in this Virginia Bill of Bights, except that the venue instead of being the vicinage, as in the Virginia Bill of Bight, is “the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”
In the Constitutions of a number of States their Bill of Rights, adopts the language of this amendment to the Constitution of the United States except, that the venue is fixed in the county or district where the crime was committed, instead of the “State or district,” and some of them omit the words “the district shall have been previously ascertained by law.” As instances of this we may refer to the Constitutions of Kansas, Illinois, Tennessee, Wisconsin, Ohio and Minnesota. It this last State this constitutional provision has been interpreted. Section 6 of article I. of their Constitution provided: That “in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county or district wherein the crime shall have been committed, which county or district shall have previously been ascertained by law.” And section 20 of chapter 108 of their General Statutes provides: That “offenses committed on the boundary-lines of two counties on within one hundred rods of the dividing line between them, may be alleged in the indictment to have been committed in either of them, and may be prosecuted or punished in either county.” This is substantially the same as our statute law, except we have substituted one hundred “yards” for one hundred “rods.” In The State of Minnesota v. Robinson, 14 Minn. R. p. 447, the court decided, that this statute was not in conflict with their Constitution. This conclusion was however rather hesitatingly reached. No authorities were referred to really sustaining it; the authorities referred to
By the terms of our Constitution article 3 § 14 p. 7 of Acts 1872-3 the venue in all criminal cases is, the “county” where the alleged offense was committed. While by the Minnesota Constitution this venue was not confined to the county where the crime was committed, but might be extended to the district, which might include many counties. The Constitution of Minnesota provided for dividing the State into six districts, and for establishing in each district a court presided over by the same judge, who should have original criminal jurisdiction; and thus a crime could be punished by a trial in a county, which might be at a considerable distance .from the county, in which the crime was committed, and by a jury none of whom might be from such county. The court, in State of Minnesota v. Robinson, 14 Minn. 452, refer to this and base their decision in part on this peculiarity of the Minnesota Constitution, which is not to be found in ours, in which the boundaries of a county are necessarily the boundary of the jurisdiction of all courts having original jurisdiction in criminal cases. We conclude, therefore, that this Minnesota decision is entitled to but little weight with us in reaching a conclusion in the ease before us.
The language of the Tennessee Constitution of 1834, Art. I., § 9, is: “In all criminal prosecutions the accused shall have a right to a speedy public trial by au impartial jury of
The Constitution of Arkansas provided that: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county, in which the crime has been committed, &c.” This is substantially the provision in our Constitution. The revised statutes of Arkansas, see Gantt’s Digest, section 1648 provided : “When the offense is committed on the boundary of the counties, or within a half a mile of such boundary, or if it is uncertain where the boundary is, the indictment may be found and a trial had in either county.” In Dougan v. State, 30 Arkansas, R. 41 the court decided, that so far as the act invested the court with jurisdiction of crimes committed beyond the limits of the county it was unconstitutional, null and void, This decision is directly in point, in the case be
The first Constitution of "West Virginia departing from the Bill of Bights, which had always constituted a portion of all the different constitutions of Virginia instead of providing, that the venue in all criminal cases 'should bo in the vicinage of the place, where the crime was alleged to have been committed provided, that “the trial of crimes and misdemeanors, unless herein otherwise provided, shall be by jury, and shall be held publicly and without unreasonable delay, in the county where the alleged offense was committed, unless upon petition of the accused for good cause shown, or in consequence of the existence of the war in such county, it is removed to or instituted in some other county.” See Code of West Virginia, p. 21; Art. II., § 8 of Constitution. This provision slightly modified was continued in our present Constitution of 1872. See Art. III., § 14, page 7. It is now worded thus: “Trials of crimes and misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men, public, without unreasonable delay, and in the county where the alleged offense was committed, unless upon petition of the accused, and for good cause shown, it is removed to some other county.” But despite this constitutional privilege, the statute-law of Virginia with reference to the venue in the prosecution of crimes committed within one hundred yards of a county line was continued on our statute-books. It is thus worded in the Code of West Virginia: “An offense committed on the boundary of two counties, or within one hundred yards thereof, may be alleged to have been committed, and may be prosecuted and punished in either county. Code of W. Va. ch. 152, § 12, p. 700; Code of Va. of 1860 p. 813. This law so far as it authorizes the prosecution of a crime in a county, in which it was not committed, provided the crime is committed within one hundred yards of the county line is in direct conflict with the express
The conclusion which we have reached is fully sustained by Armstrong v. The State, 1 Coldw. 338, and Dougan v. The State, 30 Ark. 41, and is not in conflict with any case I have seen, and especially not with the State of Minnesota v. Robinson, 14 Minn. 447. For that case while it held such a statute was not in conflict with their Coftstitution, yet it was so held because of provisions in their Constitution, which are not to be found in ours. The court below did not therefore, in the case before us, err in refusing to give the plaintiff’s instruction. Such instruction was not law, unless this statute-law was constitutional and operative, which it is not. But the court did .err in granting the defendant’s instruction in the form, in which it was worded. I do not mean to say, that the law is not set forth correctly in this instruction asked by the defendant, but that it is so worded as to make the court say to the jury, “that the evidence of the State shows,
It is true that in Sheff et ux. v. The City of Huntington, 16 W. Va. p. 307, syl. 9, this Court decided, that “when there is an assumption of a fact in an instruction given to the jury, and the evidence which is certified as to the correctness of the assumption is so full and uncontra-dicted as to necessitate the inference, that it was undisputed or tacitly admitted, the judgment will not be reversed because the fact was so assumed to be true.” But, that the fact assumed in this instruction asked by the defendant, that is, that the “offense in this case was committed in the county of Roane and not in Calhonn county” cannot be regarded by this Court as an undisputed fact or as one tacitly admitted, and as “fully sustained by the evidence as to admit of no question.” On the contrary there is nothing in the record to show* that this fact was proven by the evidence or admitted by the defendant, Nor can we say, that the jury
The judgment of the circuit court, rendered on Wednesday, the 26th day of October, 1881, must be therefore set aside, reversed and annulled, and the plaintiff in error must recover of the defendant in error his’ costs in this Court expended, and this Court proceeding to render such judgment as the court below should have rendered, it is therefore considered, that the verdict of the jury be set aside because of the misinstruction given them by the court and a now trial is awarded, and this case is remanded to the circuit court of Calhoun county to be there proceeded with according to the principles laid down in this opinion, and further according to law.
Judgment Reversed. Case Remanded.