64 W. Va. 392 | W. Va. | 1908
The indictment in the criminal court, returned January 8, 190T, for murder and manslaughter, Avas in the form prescribed by section 4200, Code 1906, and charged that the defendant, on September 21, 1906, “in the said county of Mercer, feloniously, wilfully, maliciously, deliberately and unlawfully did slay, kill and murder one Mose Blagman, against the peace and dignity of the State.” January 12, 1907, the prisoner demurred to the indictment, which being-overruled, in his own proper person he entered his plea of not guilty and issue was joined thereon. January 26, 1907,
Immediately after judgment v’as thus pronounced against him, as shown in said bill of exceptions, the prisoner moved
On September 7, 1907, the prisoner presented his petition to the circuit court for a writ of error, but that court, being of the opinion that there was no error, the writ was refused. Whereupon, on presentation of his petition to this Court, October 17, 1907, the writ was allowed.
Three questions are here presented for our consideration: First, was it competent for Judge Maynard, the regular judge, to assume the bench and displace special judge Mc-Grath while considering of his judgment on the prisoner’s plea of guilty, and proceed to pronounce judgment of conr viction and sentence? Second, if competent and having jurisdiction to pronounce judgment, was it error to the prejudice of the prisoner's legal rights for Judge Maynard, in the absence of the prisoner and his counsel, to hear the statement of the special judge and examine witnesses for his personal satisfaction, preliminary to pronouncing judgment of conviction and sentence? And third, did the court err in overruling the prisoner's motion for leave to withdraw his plea of guilty and plead anew his plea of not guilty and have his case tried by a jury?
With respect to the first question, the record shows that special judge McGrath, in the absence of the regular judge, and pursuant to section 3631, Code 1906, was elected to hold the court generally in the absence of the regular judge, and not specially to preside in this particular case. Undoubtedly, therefore, the appearance of Judge Maynard, the regular judge, operated to vacate the office of special judge, without any order to that effect, as to all business except as to those cases the trial of which was already begun and continued before him. State v. Carter, 49 W. Va. 709; 23 Cyc. 611, 612, 613, and cases cited in notes. How is it as to unfinished business in the hands of such special judge? Does the appearance of the regular judge or the adjournment of the term at which the special judge is elected to
In answer to the second inquiry, it is argued that as the prisoner had withdrawn his plea of not guilty, after being warned by court and counsel of the effect thereof, and voluntarily entered his plea of guilty of murder in the first degree as charged in the indictment, without offering anything in mitigation of his crime, and as this plea was tendered to .the court and-not personally to the special judge
As to the third question, the motion of the prisoner to withdraw his plea of guilty, and plead anew his plea of not guilty and have a trial before a jury, no grounds for the motion -were assigned. The motion was not made until the prisoner had been advised of the judgment against him upon his plea of guilty. Under such circumstances he would be quite willing to try his chances again before a jury. But this motion would, at least at that term, have been properly addressed to the special judge, engaged in the trial of the case. It is quite likely that the real ground of the prisoner’s motion was his surprise at the severity of punishment, or that the special and regular judge should have made some investigation of the aggravating circumstances of his crime. It is no abuse of the discretion of the court, however, to refuse the withdrawal of a plea under such circumstances. 12 Cyc. 350, 351, 352, and cases cited. It is, generally speaking, a matter addressed to the sound dis
For the reasons assigned, we reverse the judgment of the criminal court, and entering such judgment as the circuit court should have entered, the case will be remanded to the said criminal court to be therein further proceeded with according to the principles announced and directions given herein.
Reversed and Rema/nded.