State v. Sites

| W. Va. | Jul 1, 1882

IIaymond, Judge,

announced the opinion of the Court:

The only question before this Court at this time to be determined is, what action it should take upon the motion oi the Attorney-G-eneral to dismiss the writ of error allowed in this case, upon the ground that the plaintiff in error has escaped from custody, since the writ of error was allowed to the judgment of conviction of the circuit court of Mell-ólas county, and is still at large.

It does not appear in the case of Wilson v. Commonwealth, 10 Bush 526" court="Ky. Ct. App." date_filed="1874-01-08" href="https://app.midpage.ai/document/wilson-v-commonwealth-7379278?utm_source=webapp" opinion_id="7379278">10 Bush 526, that any notice of the motion to dismiss was given or required, yet the court of appeals of Kentucky in that case (in which the facts, on which the motion to dismiss was heard, are similar to' the facts, on which the motion to dismiss was made in the case at bar) sustained the motion to dismiss and did dismiss the writ of error. In the case of Sherman v. The Commonwealth, 14 Gratt. 677, no notice of the motion made by the Attorney-General appears to have been given or required by the court, and still the court in its order made in the cause upon the motion of the Attorney-General, discharged so much of the order awarding the writ of error, as directed it to operate as a supersedeas to the judgment, and also determined, that' the writ óf error be dismissed by a certain day, unless it should be made to appear to the court on or before that day, that the plaintiff in error is in custody oi the proper officer of the law.

The Court will not now absolutely dismiss the writ of error, but will make an order substantially the same as that made during the present term of this Court in the case of the State of West Virginia v. Conners (supra); and it seems to me, that notice was not necessary to the plaintiff in error or his counsel, that a motion would be made to dismiss for the causes stated in said motion and appearing in tibie affidavits filed, in order to authorize the Court to make such an order in this case substantially, as was made in the case last above referred to. And in fact I am of opinion, that no notice of the motion to dismiss the writ of error upon said affidavits was necessary to authorize this Court to hear said motion upon said affidavits, and to make such order therein, touching the dismissal of the writ of error, as to it may seem in accordance with the practice with us upon the facts appearing in support of the motion to dismiss. I am of opinion upon the authorities, that it is competent and proper for this Court in a writ of error in a felony case, granted the defendant below, to make such an order, whenever it shall be made to appear by proper affidavits that the plaintiff in error has escaped from custody and is still at large. The order is in the nature of a rule made by the Court, touching the writ of error brought here by the plaintiff in error, and the plaintiff in error must comply with its terms on pain of having his writ of error dismissed, under the circumstances appealing in the case.

The question, as to what action this Court should take upon the motion to dismiss the writ of error for the reasons, stated, has been substantially passed upon and decided by this Court in the said case of The State of West Virginia v. Conners (Supra); and in support of the action of this Court upon the said motion to dismiss the writ of error allowed in this case, as hereinafter stated, I refer to the opinion of the Court delivered in the last-named case. And for the reasons stated in the last-named ease an order must be entered in this case upon said motion substantially as follows: The Court having maturely considered the matters arising upon the said motion to dismiss the writ of error, heretofore allowed in this cause for the reasons stated of record, and the arguments of counsel therein, and it appearing, that said plaintiff in error has since the judgment oi conviction escaped from custody and is still at large, it is ordered, that said writ of error be dismissed on the' 7th day of June, 1883, unless it shall be made to appear to this Court during its present term or at any subsequent term thereof, which may be held at either of the places prescribed by law for the holding of the sessions of this Court, on or before tlie day last aforesaid, that the plaintiff in error is in custody of the proper officer of the law.

The Oti-ieR Judges Oohourred.

Writ Dismissed.