92 W. Va. 331 | W. Va. | 1922
This proceeding is an application for a writ of prohibition
■ Keeney and others were indicted at the September, 1921, term of the circuit court of Logan county, as'accessories before the fact to the murder of George Munsey, in that county, and upon his petition for good cause shown the trial of the case was transferred by that court to the circuit court of Jefferson county. The indictment was one of the results of what is termed the “armed march” of certain miners* members of the United Mine Workers of America, from the counties of Kanawha and Boone to the non-union mines in the county of Logan in the year 1921. Many other indictments for various offenses arising out of this armed march were returned by the grand juries in both Logan and Kana-wha counties, and a large number of these cases was also transferred, at the same time, for trial to the circuit court of Jefferson county. The trial of the first of these indictments in that county on a charge of treason against William Blizzard resulted in an acquittal. Afterwards, Rev. Wilburn and his son John Wilburn', who were separately tried, were convicted of murder in the second degree. Walter Allen was nest' tried and convicted of treason. The trial of Kéeney upon an indictment as accessory to the murder of Munsey was set for the 23d day of October, 1922, and when his case was called he presented his petition for a change of venue, alleging, among other things, that there had arisen such a bias of prejudice against him and his co-defendants in the county of Jefferson that he could not be afforded a fair and impartial trial therein, and in support of his petition filed numerous affidavits. The state- resisted this motion for change of venue, replied to the petition, and supported its opposition .by numerous affidavits. The circuit judge, after mature consideration, announced his intention to grant the prayer of the petition and award a change of venue, and thereupon the state announced its intention of applying to this court for a writ of prohibition^ and all proceedings, were
The state contends that the circuit court . of Jefferson county had no jurisdiction to award a second change of venue to the defendant; that the constitution and statutes of this state contemplate only one change of venue and that from the county in which the indictment is returned, and there having been one change of venue from Logan county to Jefferson county, the letter, spirit and reason of the constitution and statute have been fully satisfied and exhausted and that the lower court had no jurisdiction except to try the case. The circuit court held, and counsel for defendant insisted, that the constitutional and statutory provisions do not limit the defendant to one change of venue. Thus the controlling issue is raised.
A preliminary point is raised by defendant’s counsel, in which they assert that prohibition is not the proper remedy. If the lower court had no jurisdiction to award the second change of venue.or has exceeded its jurisdiction in so doing, then prohibition will lie. It is an ancient common law remedy issuing from superior courts of common law to the inferior courts to restrain the latter from excess of jurisdiction. Under our statute the writ lies as a matter of right in' all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or having such jurisdiction, exceeds its legitimate powers.
The question here for decision depends upon a proper construction of section 14 of the bill of rights, and sections 15, 16 and 17 of chap. 159 of the Code. They are as follows :
“§14. 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 offiense was committed, unless upon petition of the accused, and for good cause shown, it is removed to some*334 other county. In all such trials, the accused shall be fully and plainly informed of the character and cause of the accusation, and be confronted with the witnesses against him, and shall have the assistance of counsel, and a reasonable time to prepare for his defense; and there shall be awarded to him compulsory process for obtaining witnesses in his favor.”
* ‘ §15. Change of Venue. — A circuit court may, on the petition of the accused and for good cause shown, order the venue of the trial of a criminal cause in such court, to be removed to some other county.”
“§16. When the venue is so changed, the court making the order shall recognize the witnesses and the accused (if the offense be bailable, and bail be given) to appear on some certain day before the court to which the case is removed; if the offense be not bailable, or the bail required be not given, the court shall remand him to its own jail and order its officers to remove him thence to the jail of the court to which the case is so removed, so that he shall be there before the day for the appearance of the witnesses.”
“§17. The clerk of the court that orders a change of venue, shall certify copies of the recognizance aforesaid, and of the record of the case, to the clerk of the court to which the case is removed; and such.court shall proceed with the cases as if the prosecution had been originally therein, and for that purpose the certified copies aforesaid shall be sufficient. ’ ’
The able briefs of counsel have facilitated an examination of the decisions of the various states based on the different statutory provisions. These statutory enactments, especially with respect to the number of times a party may obtain a change of venue, are very dissimilar, and of course the decisions based thereon are necessarily variant. Some of the states, notably, Alabama, Arkansas, Indiana, Kentucky, Nebraska and Missouri expressly provide that only one change of venue may be had by the same party for the same cause Usually there is a provision in these statutes that the accused shall have change of venue as a matter of right upon filing his affidavit, sometimes supported by other affidavits,
The various decisions which we have examined afford little aid in construing the above provisions of our constitution and statutes. This state is what is sometimes called a “common law state,” and section 21 of article VIII of the Constitution provides, “such parts of the common law, and of the laws of this state as are in force when this article goes into operation, and are not repugnant thereto, shall be and continue the law of the state until altered or repealed by the legislature.” And section 5 of chapter 13 of the Code provides that “the common law of England, so far as it is not repugnant to the principles of the constitution of this state, shall continue in force within the same, except in those respects wherein it was altered by the general assembly of Virginia before the 20th day of June, 1863, or has been, or shall be, altered by the legislature of this state.”
What was the common law with respect to change of venue in criminal cases? It is well established by a review of the decisions of English courts that at common law the court of Kings .Bench had the inherent power to grant changes of venue whenever it appeared that fair and impartial trials could not be had. In The Queen v. Palmer, 5 El. & Bl. 1024, Lord Campbell in granting a petition for removal to another county on the ground that an impartial trial could not be had where the indictment was found, asserted the jurisdiction
It would appear, therefore, that section 14 of our bill of rights, under consideration, is but declaratory of the common law, but limits the right of change of venue to the accused for good cause shown. The power inherent m the courts at common law has not been changed by our eonsti-
The reason given by the Maryland court in the case of Price v. State, 8 Gill 295, above referred to, that if more than one removal be had, “why not a third, a fourth, and as many removals as there are counties in the state, until, ultimately, the cause, if tried at all, is to be tried at some place the most remote and inconvenient to all who are witnesses or otherwise connected with it, and after a period of time in which the material testimony in the case has been lost, ’ ’ and which reason is insisted upon by the state in this case, we think is untenable, because, as was said by Judge PoffeNbaRGER, in his verbal announcement on the bench of our decision, that, “It is not to be assumed that any circuit judge is going to refuse to make proper inquiry into the cause of removal and grant a removal unless his conclusion is warranted by his investigation.” Under our statute, the case cannot be removed upon the mere petition of the accused. The state has the same right to be heard as the accused, and the petition for the change must show good cause for such change. It cannot be presumed that the circuit court will, abuse its discretion and grant a change which is not warranted after careful investigation. ■ ’
Lastly, it is insisted that the circuit court is in error in allowing defendant a change of venue from Jefferson county, because the affidavits and other evidence before the court did not show good cause therefor. We cannot consider this assignment of error in this proceeding. The only question
The rule will be discharged.
Writ refused.