233 S.E.2d 425 (W.Va. 1977), 13835, State ex rel. Peacher v. Sencindiver

Docket Nº:13835.
Citation:233 S.E.2d 425, 160 W.Va. 314
Opinion Judge:HARSHBARGER, Justice:
Party Name:STATE of West Virginia ex rel. Charles W. PEACHER, Jr. v. Vance E. SENCINDIVER Judge, et al., Respondents.
Attorney:Radosh & Askin, Steven M. Askin, Martinsburg, for relator. Robert R. Skinner, Pros. Atty., Charles Town, for respondents.
Case Date:April 05, 1977
Court:Supreme Court of Appeals of West Virginia
 
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233 S.E.2d 425 (W.Va. 1977)

160 W.Va. 314

STATE of West Virginia ex rel. Charles W. PEACHER, Jr.

v.

Vance E. SENCINDIVER Judge, et al., Respondents.

No. 13835.

Supreme Court of Appeals of West Virginia.

April 5, 1977

Syllabus by the Court

1. Denial of pretrial mental examination of an accused criminal may be an abuse of discretion by a trial court.

2. A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va. Code 53-1-1.

3. W.Va. Code 61-2-1 does not violate the due process clause of our federal and state constitutions. It requires the State to prove, in order to sustain a first degree murder conviction in a felony-murder case, that defendant committed or attempted to commit the named felony and that he committed murder incidental thereto.

Radosh & Askin, Steven M. Askin, Martinsburg, for relator.

Robert R. Skinner, Pros. Atty., Charles Town, for respondents.

[160 W.Va. 315] HARSHBARGER, Justice:

Petitioner Charles W. Peacher, Jr. was arrested June 30, 1976 and indicted in Jefferson County on September 21, 1976 for murder and burglary.

He was examined by four psychiatrists, two, separately, in the Jefferson County jail, and two at Weston State Hospital.

The Weston examination was court-ordered and made in December, 1976. The psychiatrists reported on January 3, 1977 that defendant was competent to stand trial but they recommended, "A further neurological examination, EEG, and brain scan, neurological examination to rule out organic-pathology as a result of heavy drug usage."

The other psychiatrists also opined that Peacher was competent to be tried. None could give an opinion about his criminal responsibility at the time he allegedly committed the crimes.

On January 19, 1977 petitioner moved the trial court for a continuance of the case, which was docketed for trial on February 8, to allow the neurological examination to be conducted. The court denied the motion

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and this Court issued a rule to the trial court, the prosecuting attorney and the sheriff to show cause why prohibition should not issue. The matter was argued March 1, 1977.

The question is whether prohibition should issue to prevent trial of defendant Peacher until he...

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