Buskirk v. Judge Of Circuit Court.

• Decision Date: 22 August 1873
• Court: West Virginia Supreme Court
• Parties: Buskirk v. Judge of Circuit Court.

7 W.Va. 91

Buskirk

v.Judge of Circuit Court.

Supreme Court of Appeals of West Virginia.

August 22, 1873.

1. The 7th section of chapter 16, of the acts of the Legislature of West Virginia, 1872-3, entitled "An act organizing the Supreme Court of Appeals, defining its jurisdiction and powers, and prescribing its manner of proceeding," does not apply, in whole, or any part thereof, to a case of prohibition, commenced in the Supreme Court of Appeals. Dissentient, Hoffman, Judge.

2. B. was indicted in the circuit court of the county of Logan for the murder of M. on the 12th day of July, 1870. At the time the indictment was found, B. was in jail in said county upon a charge of murder. On the 20th day of March, 1873, B., who had been bailed, appeared in said court in discharge of his recognizance of bail, and on the 22d day of March, 1873, the court, on the motion of B., changed the venue, and sent the cause for trial to the county of Cabell. At the circuit court of the county of Cabell, held on the 27th day of May, 1873, B. was set to the bar of the court, in custody of the jailor of Cabell county, and not having plead or demurred to the indictment, he objected to being tried by the circuit court of Cabell county, upon the indictment, until he was first examined by the county court in pursuance of the provisions of the act of the Legislature, approved April 3, 1873, entitled "An act providing for the examination of persons charged with felony, before the county court;" but the court overruled B.'s objection, and decided that B. was not entitled to an examination, under the provisions of said act of the Legislature, and that the court had a right to proceed, and would proceed, to trial and final judgment upon the indictment without such examination being had; to which opinion and decision of the court, B. excepted. Held: That if said act of the Legislature of April the 3d, 1873 be valid, and applies to B.'s case (which is not now decided), and the court erred in its judgment in denying B. said examination, before the county court, before proceeding to final trial upon the indictment, a writ of prohibition does not lie from the Supreme Court of Appeals to the judge of the circuit court to prohibit him from proceeding further with the trial of the indictment until B. shall be examined by the county court, the circuit court having original and general jurisdiction of all cases of felony, conferred upon it by the Constitution and laws: And held further, that B.'s proper and appropriate remedy for the correction of such error, if error it be, is by writ of error in case he should be convicted in the said circuit court of felony, upon said indictment, and not by prohibition before trial and conviction. 3. Prohibition can only be interposed in a clear case of excess of jurisdiction on the part of some inferior judicial tribunal. Where the matter is clearly within the jurisdiction of the inferior court, a mere error in the proceedings may be ground of appeal or review, but not of prohibition.

This was an application to the Supreme Court of Appeals, by Urias Buskirk, for a writ of prohibition against the Hon. Evermont Ward, Judge of the circuit court of Cabell county, to prohibit and restrain him from further proceeding to try said Buskirk, upon an indictment which had been Jound against him, for the murder of one Morgan. The indictment was returned by the grand jury of Logan county, and, on motion of the respondent, and with the assent of the attorney prosecuting for the State, removed for trial to the circuit court of Cabell county. The grounds of the application were, that, at the date of such application, there was a statute in force in this State, requiring that in all cases of felony the respondent should receive a preliminary examination before the county court, before he should be put on trial in the circuit court unless the respondent expressly waived such preliminary examination, which he alleges he did not in this case, but, on the contrary, demanded. The other facts and the statutes and provisions of the Constitution alluded to, are sufficiently stated in the opinion of Haymond, President.

James H. Ferguson, for the petitioner.

George H. Lee, for the State.

Haymond, President:

The petitioner Buskirk was indicted by the grand jury of the county of Logan, on the 12th day of July, 1870, for the murder of one Peter D. Morgan, in said county, on the 27th day of May, 1870. It appears from the return of Judge Ward that Buskirk was arrested, upon a warrant issued by a justice, on the 28th day of May, 1870, and committed to jail in said county upon the charge of murder, for which he was so indicted; that Buskirk escaped from jail and remained out of reach of process until a short time prior to the 7th day of October, 1872; that on the 11th day of October, 1872, on his petition, a writ of habeas corpus was duly awarded in his behalf, and on the 19th day of October, 1872, he was allowed to give bail for his appearance before the circuit court of said county, to answer said indictment; and at the said court, commencing on the 20th day of March, 1873, he appeared in court, in discharge of his recognizance of bail, and moved the court to continue the trial of the indictment until the next term; and thereupon the court granted leave to Buskirk until the next morning to say whether he was ready for trial it having been announced to the court, by the prosecuting attorney on behalf of the State, that the State was ready for the trial. Thereupon Buskirk was by the court committed to the custody of the sheriff, to be brought into court the next morning. On the next day, being the 21st day of March', 1873, "came the State by her attorney prosecuting, and thereupon the prisoner was brought into court and led to the bar in custody of the sheriff, and in his proper person moved the court for a continuance of the trial of the indictment, on the ground of the absence of counsel, and material witnesses, and also upon the ground that the court house was not then suitable for holding court for his trial. But the court being of opinion that Buskirk had not used proper diligence to prepare for the trial, overruled his motion to continue for want of his counsel and witnesses, and took time, until the next day to "consider the motion on account of the condition

of the court house, and the state of the weather; and thereupon Buskirk was again committed to the custody of the sheriff, with instructions to return him into court on the next morning, at half past eight o'clock. And on the next day, that is the 22d day of March, 1873, again came the State by her attorney prosecuting, and the prisoner was again led to the bar of the court, in custody of the sheriff and the court then announced, that the weather still being extremely inclement, it was of opinion that the cause could not then be further proceeded with without great danger to the health, and, perhaps, to the lives of persons attending upon the trial; and for that reason the court ordered that the cause stand continued until the first day of the next term. Immediately, Buskirk, in his proper person, moved the court, to change the venue, and remove the trial of the cause from said county, on account of its great notoriety, and the excited feelings of the citizens thereof, and the attorney for the State not resisting the motion, but concurring therein, and the court being of opinion that the cause ought to be removed from said county for trial, ordered that the same be removed and transferred to the circuit court of Cabell county there to be further proceeded in, and that the sheriff of Logan county after the adjournment of the court convey Buskirk, the prisoner, to the jail of Cabell county and deliver him to the jailor thereof; and the jailor of Cabell county was authorized, and directed, to receive into his jail, and there safely keep, Buskirk. The court, at the same time, made the usual order in such cases as to transcript of the record, &c. The prisoner did not demur, or otherwise plead to the indictment, prior to the removal of the case to Cabell county for trial, so far as the record shows. At a circuit court held for the county of Cabell on the 27th day of May, 1873, Buskirk was set to the bar of the court, in custody of the jailor of said county of Cabell, and not having plead or demurred to the indictment, he, in his proper person, objected to being tried, by the last named court, upon the indictment until he should be first examined by the county court in pursuance of the act of the Legislature of the State, approved April 3, 1873, entitled "An act providing for the examination of persons charged with a felony before the aounty court," and asked that all further proceedings on said indictment be postponed until such examination should be had. The court overruled the objection, being of opinion that the cause ought to be proceeded in, in that court, to final trial. Buskirk was then inquired of whether he was guilty of the offence charged in the indictment; and he refused to plead or answer, alleging as the reason for his refusal, that he had not been examined by the county court upon said charge, as provided for by the said act of the Legislature, approved April 3, 1873. And Buskirk not confessing his guilt, the court ordered that the plea of not guilty be entered on the record for him. On the 28th day of May, 1873, Buskirk was again set to the bar of the court in the custody of the jailor of said county of Cabell, and thereupon he gave notice of his intention to apply to this court for a writ of prohibition to prohibit the said circuit court from further proceeding in the case, and, thereupon, the court made an order postponing the trial of the case 1 until the 4th Monday in July, 1873, and Buskirk was remanded to the jail of Cabell county. Buskirk took a bill of exceptions to the opinion and judgment of the court refusing and denying to him an examination before the county cour...