Denham v. Robinson

• Citation: 77 S.E. 970,72 W.Va. 243
• Parties: DENHAM. v. ROBINSON, Judge, et al. LANG. v. SAME. (two cases).
• Decision Date: 18 March 1913
• Court: Supreme Court of West Virginia

77 S.E. 970

72 W.Va. 243

DENHAM.

v.ROBINSON, Judge, et al.

LANG.

v.SAME. (two cases).

Supreme Court of Appeals of West Virginia.

March 18, 1913.

(Syllabus by the Court.)

1. Criminal Law (§ 302^*)—Entry of Nolle Prosequi—Sufficiency.

The entry of a nolle prosequi by the prosecuting attorney, though the attorney general joins therein, without the consent of the court, is ineffective to discontinue a prosecution upon an indictment by a grand jury.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 688-697; Dec. Dig. § 302.*J

2. Criminal Law (§ 302*)—Nolle Prosequi —Consent of Court.

Though the rule at common law is otherwise, the practice long followed in Virginia, before the separation, and since then in trial courts of this state has become crystalized into our law, and a nolle prosequi entered without the consent of the court will be unavailing to discharge the accused from prosecution.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 688-697; Dec. Dig. § 302.*]

3. Criminal Law (§ 102*)—Jurisdiction-Discharge of Prisoner.

A trial court by discharging a prisoner from the custody of the sheriff, on his surrender by his bail in open court, does not thereby lose jurisdiction of the indictment or thereafter to retake the accused on a new capias and put him upon his trial upon the indictment.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 206-212; Dec. Dig. § 102.*]

4. Criminal Law (§ 576*)—Adjourned Term — "New Term"—Discharge — Want of Prosecution.

An adjourned term of a circuit court, or of the criminal court of Harrison County, had pursuant to section 4, chapter 112, Code 1906, is not a "new term, " but a continuance of the term adjourned; and one then under indictment and who would at the end of that term if not tried be entitled to his discharge, because three terms had elapsed after indictment found, without trial, is not entitled to such dis charge, if brought to trial at such adjourned term.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1297-1304; Dec. Dig. § 576.*

For other definitions, see Words and Phrases, vol. 5, p. 4788.]

(Additional Syllabus by Editorial Staff.)

5. Criminal Law (§ 302*) —"Nolle Prosequi."

"Nolle prosequi" is an entry on the record by which prosecutor declares he will proceed no further, either as to some of the counts of the indictment, or part of a divisible count, or to some of the defendants, or altogether.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 688-697; Dec. Dig. § 302.*

For other definitions, see Words and Phrases, vol. 5, p. 4814.]

Poffenbarger, P., and Lynch, J., dissenting.

Petitions and rule to show cause by A. A. Lang, J. G. Lang, and Sherman C. Denham for writs of prohibition against James W. Robinson, Judge of the Criminal Court of Harrison County, and others. Writs refused.

Sperry & Sperry and Geo. M. Hoffheimer, both of Clarksburg, for petitioners.

Louis A. Johnson, of Clarksburg, for respondents.

MILLER, J. On petitions and rules to show cause against it, petitioners seek to prohibit, Hon. James W. Robinson, Judge of the Criminal Court, and A. Judson Pindlay, Prosecuting Attorney, of Harrison County, from proceeding further upon certain indictments against them charging them respectively, with embezzlement, while deputy sheriffs, of public funds and property, of said county, coming into their possession by virtue of their said offices, places and employments.

The indictments were returned at the December Term, 1911, of said court, at which term the petitioners voluntarily appeared, and entered into recognizances for their subsequent appearances to answer the indictments; and leave was granted them to plead thereto, on or before the next regular term, being the March Term, 1912, of said court. At that term, petitioners appeared, and after certain motions and pleas tendered by them were rejected, their motions to require of the State a bill of particulars was sustained, and a bill of particulars was filed, and without further action the cases were then continued until the next regular June term of the court, petitioners again entering into recognizances for their appearances at that term. At the June Term, 1912, petitioners again appeared, but no action on these indictments was then had or taken, except that petitioners again entered into recognizances for their appearances at the next regular term, which by law was appointed to be held in November of that year. At the November term continued and held on December 16, 1912, the following order, in the Denham case, being the same as in the other cases, except as tonames, was entered: "This day came the State by her Prosecuting Attorney, and the defendant Sherman C. Denham, in his own proper person, and by Sperry & Sperry and George M. Hoffheimer, his counsel. And the panel of jurors heretofore regularly drawn and in attendance at the regular term of this court, to-wit, the November term, 1912, having been discharged for the term on the 13th day of December, without the consent of the said defendant, thereupon the said State, by her Prosecuting Attorney, by the advice and consent of the Attorney General of said State, says that she will not further prosecute the said defendant on the indictment aforesaid, and move the court that the defendant be discharged from the said indictment and go thereof without day. But the court having considered said motion of the said State, doth refuse its assent thereto for the reason that Fred O. Blue, State Tax Commissioner of the State of West Virginia, heretofore on the __day of December, 1912, by private communication with the Judge of this court, although not in the presence of this defendant, did inform the said Judge that the State Tax Commissioner aforesaid desired a trial of the said defendant upon the said indictment at an adjourned term of this court and requested that such adjourned term be held and that no nolle prosequi be entered, and that the defendant be not discharged without trial at this present term of this court. And it is therefore ordered that the assent of this court to the nolle prosequi and discharge of the said defendant upon the said motion of said State by her Prosecuting Attorney be, and the same is hereby denied, to which opinion and ruling of the court the said defendant then and there duly excepted. And leave is given to the said defendant to tender and have signed, sealed and made part of the record herein, his bill of exceptions, within thirty days from the adjournment of this term. And thereupon, Melvin G. Sperry, surety of the said defendant upon the recognizance of the said defendant, given in open court at the last term thereof, to-wit, on the 15th day of June, 1912, at the bar of the court, surrendered the said defendant to the custody of Percy Byrd, sheriff and jailer of this county and it is ordered that the said recognizance heretofore given by the said defendant and by said Melvin G. Sperry, as surety, be and the same is hereby discharged and set aside. And the said defendant being so surrendered as aforesaid, the court, upon its own motion, doth order, and it is hereby ordered that the said defendant Sherman C. Denham, be and he is hereby discharged from the custody of said sheriff upon the indictment aforesaid."

This was the only action of the court in these cases at that term, except the following order, entered on the same day: "This court being about to end without dispatching all its business, it is ordered that the court do now adjourn until the 17th day of February, in the year 1913."

At the adjourned term, held on the day appointed in February, defendants were called, and not appearing, capiases were awarded for their apprehension and to bring them into the court to answer the indictments. And the petitions allege that on the convening of the court at this term on request of the court counsel for petitioners appeared, but in their absence, and the prosecuting attorney announcing in open court that he desired to proceed with the trial of petitioners, their counsel, in their absence, stated to the court in substance the following: "Our respect for this Court and our sense of obligation as members of this Bar constrain Mr. Sperry and myself to state briefly the views which we entertain with respect to the indictments returned at the November Term, 1911 against Sherman C. Denham, John G. Lang and Adelbert A. Lang. It is our opinion that by the orders entered in this court on the 16th day of December, 1912, the prosecutions against said defendants upon said indictments were finally and effectually terminated, and that this court no longer has jurisdiction of or over said defendants, and further than this we have nothing to submit for the consideration of this Court at this time." And it is further alleged that thereafter on motion of the prosecutor, the capiases were awarded, and that unless prohibited defendants intend to and will place petitioners on trial on said indictments at the pending adjourned term of the court.

The returns of respondents admit all the material facts as alleged.

The grounds on which petitioners rely, as stated in their petitions, are substantially: 1. That by the nolle prosequi entered by the Prosecuting Attorney by the advice and consent of the Attorney General, the prosecution of petitioners on said indictments was finally ended and determined. 2. That even if the nolle prosequi so entered without the consent of the court was ineffectual the order discharging petitioners from the custody of the sheriff terminated the indictments and prosecution thereon, and that the Court thereby lost jurisdiction of the indictments, and to try petitioners thereon. 3. That there having been three regular terms of the Court after the indictments were found without trial, petitioners were thereby, by virtue of section 25, chapter 159, Code 1906, forever discharged from prosecution for the offences alleged against them, and that for this reason also said Court was without...