Cummings v. Armstrong, Judge.
| Citation | 34 W.Va. 1 |
| Parties | Cummings v. Armstrong, Judge. |
| Decision Date | 16 June 1890 |
| Court | Supreme Court of West Virginia |
Mandamus Bill of Exceptions judges.
A judge will not be compelled by mandamus to sign a particular bill of exceptions, when lie alleges in his answer to a rule from this Court, that such bill does not truly state the facts. The judge has sole power of determining whether such bill is true or not. His return to the writ is conclusive on this point and can not be traversed. It is necessary however, that he should settle and sign a proper bill, which, he must certify, does contain the facts and the truth.
I. H Lynch for petitioner. H G. Flesher for respondent. Lucas, Judge:
The petitioner, Samuel E. Cummings, presented his petition to one of the judges of tins Court, praying that a rule bo awarded against V. S. Armstrong, judge of the sixth judicial circuit of this State, requiring him to show cause why a mandamus should not issue against him to compel him to sign two certain hills of exceptions, which are set out in the petition. The petitioner was tried for murder in the Circuit Court of Roane county at the August term, 1889, and convicted of murder in the first degree, and the punishment of confinement iii the penitentiary awarded by the jury; and it was on this trial that the said bills of exceptions were prepared and presented to the court for signature and seal, but the court refused to certify them. The answer of Judge Armstrong was tiled in the clerk's office of this Court on the 29th day of October, 1889, and at the hearing the relator filed his "demurrer and special replication."
The first bill of exceptions relates to certain testimony, which, the petitioner states, he offered on the trial, but which the court excluded. The second hill of exceptions sets out in detail the facts proved on the trial, and the notes taken by the short-hand reporter, who had been employed and duly sworn in accordance with the act " authorizing judges of Circuit Courts to employ short-hand reporters," as found in Code 1887, p. 1028. The question before this Court now to be considered is whether the rule should be discharged, or a mandamus nisi be awarded.
The petitioner, it will be observed, has treated the answer to the rule, as if it were an answer or return to a mandamus nisi and has demurred and filed a special replication. Whether this was proper pleading or not, it is unnecessary to inquire, as the respondent has not complained of it, and the petitioner is not in a situation to do so, as it is his own pleading. His demurrer, therefore, must be taken to admit the truth of the facts stated in the answer.
In the answer the respondent states as to the first bill of exceptions, that no such evidence was offered by the petitioner at the time, and none such rejected by the court. This on demurrer disposes at once of the first bill of exceptions.
As to the second bill the respondent admits, that he refused to sign the bill prepared and presented by the peti- tioner's counsel, for the reason that it did net truly state the facts proved. And as for the notes of the short-hand reporter the respondent proceeds to say:" Respondent further answering says, that upon the trial of said petitioner respondent upon information, that he deemed reliable, derived from counsel in said case, as to the competency of C. R. Ball as a short-hand reporter, did appoint said Rail, who was duly sworn to take full short-hand notes of the evidence adduced upon the trial of said petitioner; that during the progress of said trial it was found and ascertained that said reporter was wholly incompetent to report the evidence therein, and the counsel for the State and for petitioner did not rely upon said reporter's notes of the evidence, but that counsel for the State and petitioner took extensive notes of the evidence adduced on said trial." The answer of the respondent concludes as follows:" Respondent says that the facts purporting to be contained in said petitioner's Exhibits B and C respectively do not contain all the material facts proved upon the trial of said cause, but that petitioner's Exhibit J), from pages 22 to 44, inclusive, does contain all the material facts proved upon the trial of said petitioner."
If tins statement be true, ami it must be so taken on demurrer, it effectually disposes of the second bill of exceptions, as the respondent could not properly sign a bill, which required him to certify that it contained all the material facts proved, when such was not the case; and when he certified a bill of exceptions containing all the facts proved, as the answer states and the demurrer admits, nothing more could or can be required of him. But, in addition to his demurrer the petitioner files a special replication, in which he denies the material averments of the answer. Under the law, as repeatedly decided by this Court, such a replication must be disregarded. In Douglass v. Loomis, 5 W. Va. 542, it is said: To the same effect, see Poteet v. Commissioners, 80 W. Va. 58 (8 S. E. Rep. 97) and Morgan v. Fleming, 24 W. Va, 189.
But it has been urged by counsel with a good deal of power and ingenuity, that the demurrer to the answer should be sustained, because a demurrer admits as true only such matters of fact as are well pleaded or sufficiently pleaded, and that in this case the respondent could not aver in his return that the notes of the short-hand reporter do not contain all the material facts proved in evidence. The respondent, it is argued, is estopped to make such an averment by virtue of the statute, which uses the following language: Acts 1887, c. 20, § 3; Code 1887, p. 1023.
It is urged not only that this defective averment renders the answer bad on demurrer, but that the relator may reply specially, denying the said averments of the answer, and such replication being proved by the record is conclusive. If the respondent had suppressed the reporter's notes, we should be called upon to interpret the above statute, and to declare its force and effect in determining what were the facts proved in any given case. But in this case the respondent signed a bill of exceptions stating' that the evidence was taken down by the short-hand reporter, who had been duly qualified under oath to take full shorthand notes of the evidence; and in a separate order entered on the order-book, and certified to this Court by the clerk, it is stated: "The court deeming it important and necessary to employ a short-hand reporter to report the proceedings had and testimony given in the trial of this cause, appointed C. R. Ball as such reporter; and, the said Ball having performed said services under said appointment" etc. Not only was this order entered, but a copy of the reporter's notes, identified by the clerk and certified by the said reporter, is sent up here as a part of the record. The rule on this subject is correctly stated in State v. Vest, 21 W.Va. 800: "Whatever, therefore, on the face of a book of record, has been duly authenticated by the signature of the judge, must be held to be an absolute verity, and it can not be contradicted; and so, also, any paper actually referred to on the record-book (order-book) as filed, or as constituting a part of the record, is to be regarded as a part of the record, and is as much a verity as if it had been spread out at length as a part of the record."
The object of a mandamus, in such cases as this, is "to perfect the record for appeal." If, therefore, these notes are official, and the best authority, even as against the certificate of the court itself, as is claimed by petitioner's counsel, the petitioner already has them on the record, as much so as if they were embodied in a separate bill of exceptions; and, on the trial of his writ of error, should one issue, he will have opportunity to derive every advantage from these notes which the statute contemplates. In reference to them, the petitioner has been deprived of no right by the action or non-action of the respondent; nor do we think that this Court ought to require respondent to certify that these notes contain all the evidence, if he can not conscientiously do so. If they are to have the force and conclusiveness claimed for them, the certificate of the judge in their favor could add nothing to their value; neither could his counter-certificate detract from their weight or conclusiveness as evidence. As to the true interpretation of the section of the statute of 1887 already quoted, that is a question which ought not to be decided until it properly arises on writ of error in the case, should one be granted, or in some similar case on an appeal or writ of error.
Having thus reached the conclusion, that the record was already perfect, and that the mandamus should not in any event issue, I had thought that the question of the true construction of the act of 1887, and the effect, value, weight or conclusiveness of the reporter's notes were not involved, or did not...
To continue reading
Request your trial
-
Cummings v. Armstrong
... 11 S.E. 742 34 W.Va. 1 Cummings. v. Armstrong, Judge. Supreme Court of Appeals of West Virginia. June 16, 1890. Mandamus—To Judge—Bill of Exceptions-Signing. A judge will not be compelled by mandamus to sign a particular bill of exceptions, when he alleges in his answer to a rule from this court that such bill ......