8 W. Va. 686 | W. Va. | 1874
At a circuit court held for the county of Ohio on the 20th day of May,'1872, there was found by the grand jury attending said court “A true bill” of indictment against Taylor Strauder for the murder of Anna Strau-der in said county of Ohio. The indictment contains three several counts — each count is for the same murder, but they differ somewhat in the description of the offense. On the day the indictment was found, Taylor Strauder was led to the bar of said court, in the custody of the jailor, and he then and there in his proper person demurred to the indictment, and the State, by her attorney, joined in the demurrer. The court upon consideration overruled the demurrer, and thereupon Taylor Strauder plead that "he is not guilty in manner and form as in the indictment against him is alleged, and oí this he puts himself upon the country,” and the State, by her attorney, did likewise. Afterwards, on the 6th day of -Tune, 1872, at a circuit court of said county this entry was made upon the record of said court in the cause, viz: “The State of West Virginia v. Taylor Strauder. Upon
During the trial of the cause Taylor Strauder excepted to several opinions of the court not hereinbefore referred to, as appears by the record.
A writ of error has been allowed Taylor Strauder to the said judgment of the circuit court, rendered as aforesaid.
It is now for this Court to determine whether there is error in the said judgment of the circuit court, and it so, what disposition should be made of the cause.
Upon a careful examination of each count of the indictment, we are of opinion that the indictment is good and sufficient in law, and that the court did not err in its judgment in overruling the demurrer thereto. Each count of the indictment appears to be in the usual form of indictments for murder in this State, and the State of Virginia, under a statute substantially the same as the statute of this State with reference to murder. Indeed, although the overruling of the demurrer is assigned as an error, in the petition for the writ of error, it was not argued before us by the counsel of Taylor Strauder that the court erred in overruling the demurrer, for the reason that the counsel considered, doubtless, that there was no error in the judgment of the court in that respect.
One of the reasous assigned by Taylor Strauder’s counsel why the circuit court should have not rendered judgment on the said verdict is, “because it appears from the record that the prisoner was not present while proceedings were had in his cause.” And he here, by his counsel, insists that the circuit .court ought not to have rendered judgment upon the verdict as it did, because it appears by the record that the reason so assigned is well-founded. To support this proposition, the counsel of Taylor Strau
We pass now to the consideration of the question whether the court erred in refusing to remand Taylor Strauder to the county court of Ohio county for examination by that court as prayed by him.
It will be seen that the alleged murder was committed, the indictment found, and the plea of not guilty entered to the indictment, prior to the adoption of the present constitution of this State on the 22d-day of August, 1872. The plea of not guilty was therefore entered to the indictment before the 3d day of April, 1873, the date of the act providing for examining courts in cases of' felony. The act of the Legislature in question is chapter ninety of the acts of 1872 and 1873, and is entitled “An act providing for the examination of persons charged with a felony before the county court.”
The first section of the act provides that, “Before any person, charged with a felony, is tried before a circuit court, he shall be examined as hereinafter provided, unless by his assent, entered of record in such court, such, examination be dispensed with.”
The second section of the act provides that “every such examination shall be had before the county court-having jurisdiction of the offense, at one of the terms; held for the trial of causes.”
The fifth section of the act provides that “upon any such examination, if it appear to the court that there is
The sixth section provides, that “if it appear, on examination of such person, that a felony has been committed, and that there is probable cause to charge the accused therewith, the court shall remand him for trial in the circuit court having cognizance of the case, take the depositions of all material witnesses on such examination, and require of them, and such as the accused may desire on his behalf, a recognizance for their attendance at the trial.”
The seventh, eighth, ninth, and tenth sections of the act provide as follows:
“7. Should the court be of opinion that the accused is entitled to bail, it shall let him to bail if he give sufficient bail, or if he do not then give it, shall enter of record that he is entitled to bail, and in what sum, and he may thereafter be admitted to such bail by any justice.”
“8. When a justice admits such person to bail, he shall transmit the recognizance to the clerk of the said circuit court, and issue a warrant for the discharge of such person from jail, upon which he shall be discharged therefrom, if detained for no other cause. ”
“9. When a person is remanded as aforesaid, by a county court, the clerk thereof shall certify to the clerk of the court in which he is to be tried, copies of all recognizances taken by the said examining court, and to the attorney prosecuting for the State, in the court wherein the trial is to be, a copy of the order remanding the accused, and of the depositions taken on the examination, and of any warrant in the case which remains filed in the clerk’s office.”
“10. If the court in which a person is examined as aforesaid, discharge him, he shall not thereafter be questioned or tried for the same offense.”
It is not necessary to refer to the other sections of the act, as they have no material bearing on the question under consideration.
It will be seen, that the first section of the act is very broad and comprehensive, and applies as readily to charges of felony existing at the time as after its passage, in the shape of indictments or otherwise. It, in effect, forbids the trial of any person charged with felony at the time of its passage or afterwards, from being tried by the circuit court before he is examined for the offense by the county court; especially is that the effect if the examination is demanded properly and at the proper time. It is true that a statute should be construed by the court as operating prospectively only, unless the words employed show a clear intention that it should have a retrospective effect. But this intention is to be found generally in the statute itself. It is to be presumed that language has been employed with sufficient precision to convey it, and unless examination demonstrates that the presumption does not hold good in the particular case, nothing will remain except to enforce it. “When a law is plain and unambiguous, whether it be expressed in general or limited terms, the Legislature should bo intended to mean what they have plainly expressed, and consequently no room is left for construction.” Cooley’s Con. Lim. 54 and 62, and authorities there cited. In the case of Perry v. The Commonwealth, 3 Gratt. 632, it was decided that the act of February 24th, 1846, changing the mode of summoning and making juries in trials for felony, applies to all cases tried after the act, though the offence was committed, or even the examining court had passed upon the case, before the passage of the act. And also that the constitutional provision forbidding ex post facto laws, relates to crimes and punishments, and not to criminal proceedings. The language of the said act of 1846 was no more positive or broad than the act of the 3d of April, 1873. In the case of the Commonwealth v. Adcock, 8 Gratt. 661, it was Aeidthat though an offense
“It is error to put a prisoner upon trial on an indictment for felony, found by the grand jury in a circuit superior court before any examination of him for the offense in the county or corporation court, though such examination be had after the indictment found and before the trial.” In Ford’s Case, 16 Gratt., 547, Judge Allen, in delivering the opinion of the court, in speaking of the examining court-, says: “It is in effect nothing more than a more for
But it is claimed that the act of 3d of April, 1873,. is invalid and void, because it violates the constitution of this State. In support of this claim we are referred to the twelfth and twenty-seventh sections of Ihe eighth article of the constitution of this State. The twelfth section, among other things, provides that the circuit courts, shall have jurisdiction of all felonies and misdemeanors-The jurisdiction here conferred is not nécessarily exclusive. This is all there is in the section that bears upon the subject. The twenty-seventh section provides that “the county court shall have original jurisdiction in all actions at law, where the amount in controversy exceeds twenty dollars; and also in all cases of habeas corpus, quo warranto, mandamus,, prohibition, certiorari, and in all suits in equity. It shall have jurisdiction in all matters of probate; the appointment and qualification of personal representatives, guardians, committees, and curators, and the settlement of' their accounts, and in all matters relating to apprentices; and of all criminal cases under the grade of felony, except as hereinbefore provided. But the jurisdiction of the county court, shall be subject to such limitations as may be prescribed by law.” It is argued that because this section says the county court shall have jurisdiction of all criminal cases, under the grade of felony, that it is an implied prohibition against the Legislature giving the county court any jurisdiction or authority whatever in cases of felony. We are not prepared tó admit this proposition as stated, if there were no other provision in the constitution upon the subject. In a free government it is essential that the legislative department should have and exercise very great powers; and it is well settled that the legislatures of the several States of the Union “have conferred upon them, by the people, the full and complete power as it vests in and may be exercised by the sovereign power of any country, subject only to such restrictions
If the people of the several counties of the State will it, they may, under the provisions of the said thirty-fourth section of the eighth article of the constitution, have judges learned in the law to preside at the county court instead of justices. And these county courts may be made as efficient for all judicial purposes as the circuit courts, and even more so, because the sessions of the county courts are more frequent. If more efficient and able county courts are desired by the people of any county or counties, than they now have, they can easily secure them under the provisions of said section thirty-four.
But it is argued that although the Legislature may have authority to enlarge the jurisdiction and duties of' the county courts, as well as to limit the same, and also under these powers to pass the said act of the 3d of April 1873, still the Legislature had no authority under the constitution and schedule to make the same applicable to this case, because the offense was committed, and the indictment found prior to the adoption of the present constitution and prior to the 1st day .of January, 1873. And in support of this position the last clause of the thirty-sixth section of the eighth article of the constitution, the last clause of seventeenth section of the schedule,
The act of the 3d of April, 1873, by its terms operated immediately upon all persons within its scope. Who are these persons ? Persons charged with felony. —Such charges might be either then pending, or thereafter made. Does the law confine its operation to one, or embrace both ? The language of the law answers
The ninth section of the thirteenth chapter of the Code of this State,, which was in force at the adoption of the present constitution, and is still in force, expressly provides that “the repeal of a law, ox its expiration by virtue of any provision contained therein, shall not affect any offense committed, or penalty or punishment incurred before the repeal took effect or the law expired, save only that the proceedings thereafter had shall conform, as far as practicable, to the laws in force at the time such proceedings'take place, unless otherwise specially provided; and that if any penalty or punishment be mitigated by the new law, such new law may, with the consent of the party affected thereby, be applied to any judgment pronounced after it has taken effect.”
The act of the'3d of April expressly gives the accused the right to elect whether he will be examined by the county court upon the charge, or not, before trial in the circuit court; and it is not in the power of the court to deprive him of that right, if he demands it properly and at the proper time. When the accused has demanded that right, and he has not been examined by the county court, or waived the examination, if the demand was made in proper time, the circuit court is unauthorized by law to proceed with the trial against his protestation, as was done in this case. Was the demand for the benefit of the act of 3d of April, 1873, made in proper time? It was made at the first opportunity after the passage of
The error of the circuit court in refusing the accused an examination before the county court of the county of Ohio upon said charge of murder, is fatal to all the other proceedings in the cause by which the accused was tried, convicted and sentenced to be hung, and the ruling to that effect by this court, renders it unnecessary to determine any other questions decided in the cause by said circuit court, after such refusal, as it may properly be considered that they do not fairly arise in the case for adjudication.
For the foregoing reasons we are of opinion that the-said circuit court of the county of Ohio, erred in its judgment and ruling that the said Taylor Strauder is not entitled to Ido examined before the county court, of the said county of Ohio, upon and for the charge of murder alleged against him, in the indictment in this cause, before-being tried therefor before the said circuit court, and that therefore the said circuit court erred in its judgment rendered in the said cause, on the 6th day of May, 1873, in overruling the motion of the said Taylor Strauder then made to the said circuit court, to remand him to the county court of the said county of Ohio, to be examined by the said county court upon and for the said charge of murder, in the said indictment alleged against him, before trial thereon and therefor, in the said circuit court, according to the provisions of the act of the Legislature approved the 3d day of April, 1873, entitled, “An act providing for the examination of persons charged with felony before the county court,” we, being'of opinion that, as it appears by the record, the said Taylor Strauder made the said motion to the said circuit court,, before the jury was called, elected, tried, and sworn to try the cause, and at the first opportunity he had to-make the same after the approval of the said act of the Legislature, the said Taylor Strauder was and is entitled to be examined before the count}r court of the said county of Ohio, upon and for the said charge of murder before he can lawfully be tried before the said circuit court upon the said charge of murder — he, the-said Taylor Strauder, not having plead in bar to the said indictment after the approval of the said act, nor dispensed with such examination in any sufficient manner.
We, therefore, consider that the judgment of the said circuit court of the county of Ohio, rendered in this cause against said Taylor Strauder, on the 8th day of July, 1873, upon the verdict of jury found in the cause whereby the said Taylor Strauder was condemned to death, and also the said judgment and order of the said circuit court in refusing and overruling the said motion of the said Taylor Strauder, and all the proceedings of the said circuit court had in the cause, after his said motion was so refused and overruled, be reversed and annulled, and that the verdict of the jury rendered in the said cause, beset aside.
And this court, proceeding to render such judgment as the said circuit court ought to have rendered upon the said motion of the said Taylor Strauder to be remanded to the county court of the county of Ohio to be examined by said county court upon the said charge of murder in the said indictment alleged against him; it is considered that the said Taylor Strauder be remanded to the county court of said county to be examined by it upon the said charge of murder in the said indictmcnt.alleged against him (the said Taylor Strauder) according to the provisions of the act of the Legislature, entitled “An act providing for the examination of persons charged with a felony before the county court,” and to be otherwise proceeded with by the said county court according to the law made and provided.
And it is further considered that the said Taylor Strauder remain in the custody of the jailor of the said county upon and for the said charge of murder ■ in the said indictment alleged against him until he shall be examined as aforesaid by the said county court upon and' for the said charge of murder, and be further proceeded
And it is further ordered that the clerk of the said circuit court do, as soon as may be, make and officially certify to the said county court a copy of this order, together with an official copy of the record" oí the finding of said indictment by the grand jury attending upon the circuit court on the 20th day of May, 1872, and also an official copy of the said indictment, to the end that the said county court may be informed of this order and of the felony upon and for which the said Taylor Sfcrauder is herein directed to be examined before the said county court.
Judgment Reversed, Verdict Set Aside, and Case Remanded for Examination in Couxty Court.