Eastham v. Holt

• Citation: 27 S.E. 883,43 W.Va. 599
• Parties: EASTHAM v. HOLT, Judge.
• Decision Date: 14 September 1897
• Court: West Virginia Supreme Court

27 S.E. 883

43 W.Va. 599

EASTHAM v. HOLT, Judge.

Supreme Court of Appeals of West Virginia.

September 14, 1897

Submitted September 3,1897

Syllabus by the Court.

1. Prohibition. When it lies for abuse of power when court has jurisdiction.

2. Grand Jury. When it may be discharged. Does its improper discharge impair indictment by a subsequent jury? How many can there be at regular or adjourned term? When court may order new grand jury list.

3. Grand Jury. Organization of. Can circuit court test the qualifications of those on the list? Does formation or expression of opinion disqualify? Excusing them. Talesmen. Must they come from the county court list exclusively? Does the statute as to selection and summoning grand jurors exclude wholly the common-law method and powers of the court? Does excusing a competent grand juror impair indictment if his place is filled by a competent one?

4. Grand Jury. Is there a right to a challenge to the array or polls, or must objection be by plea in abatement? Can accused ask a particular charge, or except to the charge? Has his counsel the right to discuss questions as to competency or organization? Has defendant the right to send witnesses to grand jury? Can grand jury hear evidence other than that of state?

5. Grand Jury. Is a charge that where a homicide is proven, and no circumstances of excuse appear, it is proper that the indictment should be for murder, erroneous, in not saying that the jury have power to find an indictment for manslaughter? Does it affect an indictment for murder?

6. Does bias of the judge impair an indictment?

7. Discharge of Accused. When he is entitled to, if not indicted, or on nolle prosequi.

8. Will keeping a grand jury in custody of sheriff, or refusing to bail, or refusing to sign exceptions as to formation of grand jury, show such abuse of power by judge as to impair indictment?

9. Is the statute giving power to a single judge of supreme court to award a rule in prohibition constitutional?

Petition of one Eastham for a writ of prohibition directed to one Holt, judge of the circuit court. Writ denied by operation of law, because of a divided court.

C. W Dailey, F. M. Reynolds, Marshall McCormick, C. O. Strieby. J T. McGraw, W. B. Maxwell, H. G. Moffett, and F. C. Reynolds for petitioner.

A. G Dayton, J. J. Davis, John A. Howard, Wm. C. Clayton, A. M. Cunningham, A. B. Parsons, and Wm. G. Conley, for respondent.

BRANNON J.

Eastham was indicted in the circuit court of Tucker county for the murder of Thompson, and he obtained from a judge of this court a rule against the judge of the cir cuit court of that county to show cause why a writ of prohibition should not be awarded to him to prohibit the circuit court from further proceeding upon said indictment. The state of West Virginia moves to discharge that rule as improvidently awarded, and thus we have the question whether prohibition lies in this matter. This court has repeatedly laid down, in harmony with the law elsewhere, that the writ of prohibition lies only where the inferior court is entertaining a cause where it has no jurisdiction, or where, having jurisdiction, it abuses that lawful jurisdiction, and there is no other adequate remedy, and that it does not lie where other processes answer the demands of justice according to the usual legal procedure. Observe that, to warrant prohibition, two things must concur: (1) That the court has no jurisdiction, or is abusing its lawful jurisdiction; and (2) that there is no other remedy to correct its error. Code 1891, c. 110, § 1; County Court v. Boreman, 34 W.Va. 362, 12 S.E. 490, and citations. No one can or does question that the circuit court of Tucker has jurisdiction to impanel a grand jury to inquire of and prefer an indictment for murder, and to try the case upon such indictment, or that it had jurisdiction in this particular instance; but the claim of Eastham's counsel is that, though that court had lawful jurisdiction of the subject-matter, yet that in the action of the court in the formation of the grand jury, and the bias and prejudice of the judge manifested in dealing with the grand juries while considering the case, and in other respects, the court abused and exceeded its lawful power, rendering the very indictment itself no indictment in law,--a mere nullity. Let us see whether the circumstances do make this indictment a mere blank in law; for, if it is not such, a prohibition cannot be allowed.

A grand jury indicted Eastham for involuntary manslaughter,--a misdemeanor; and the prosecuting attorney, thinking that he should be tried for a higher grade of offense, dismissed this indictment by nolle prosequi. The court then made an order directing the county court to meet, and make up a list of persons from which grand jurors were to be drawn, and adjourned until an adjourned term, when a grand jury was impaneled, and reported that they could not agree to find "A true bill," or "Not a true bill," and where adjourned until the next morning; and, as the judge's answer to the rule says, after the adjournment the prosecuting attorney called on the judge, and stated that the foreman had requested him to say to the judge that it was useless to hold the grand jury longer, as it was hopelessly divided, and would not be able to reach a finding of any kind. The record says that they reported they could not agree in a finding. Eastham represents that the grand jury said that they had not as yet agreed as to his case. No other business remained for the grand jury. Taking the judge's answer and the record as true, the discharge of the grand jury was not improper. It is within the discretion of a court to discharge a grand jury. It is a common-law power. Our Code recognizes this power, in saying that "when one grand jury has been discharged another may, by order of the court, be summoned to attend the same term." Code 1891, § 10, c. 157. And section 9 says that, when one grand jury has found an indictment not a true bill, another indictment may be sent to it, or acted on by another grand jury, showing that the state may have another grand jury, and persist in her prosecution. Of course, it can do so where there is no finding at all, as here. It is not possible to say that we must minutely inquire whether this discharge was wise, and, if not wise, that it shall vitiate an indictment found by a subsequent grand jury. The defendant cannot take advantage of it, as its discharge released him from peril from that grand jury, unless we assume that it would have found for a low grade of offense, or none, and then say he had a vested right to have his case passed on finally by that grand jury. We cannot say this. And, if it had returned "Not a true bill," it would be no bar to a second indictment. How can it affect a later indictment? That stands on its own feet, and the discharge of the former grand jury is irrelevant in considering the indictment by a subsequent one; the question then being, is the work of the later grand jury a valid indictment? The court ordered the clerks of the county and circuit courts, on the motion of the state, as authorized by chapter 157, § 1, to draw another grand jury, and on a subsequent day of the term it assembled and found an indictment for murder. Burton's Case, 4 Leigh, 647, states the common law to be that another grand jury may be ordered upon two occasions: (1) If before the close of the session the grand jury have brought in all their bills and are discharged, and a new offense is committed, or an offender is brought in. (2) "The second ordinary instance of a new grand jury returned is upon the statute 3 Hen. VII. c. 1, namely, a grand inquest to inquire into concealment of another grand inquest, etc. 2 Hale, P. C. 154, 156." So says Chit. Cr. Law, 314; Thomp. & M. Jur. § 497. Likely it was thought by the judge that under the principle here stated he was warranted in calling another jury. There was found in the grand jury room, and shown him, a memorandum signed by the clerk of the second jury, reading as follows: "We, the grand jury, find from the evidence before us as follows: That R. W. Eastham made numerous threats against F. E. Thompson. We find that R. W. Eastham assaulted Thompson in the car; one wit. Testifying that, to the best of his knowledge and belief, that Eastham fired the 2 first shots. We find that F. E. Thompson died from wounds received in the above encounter." As his reason for ordering a new list of grand jurors to be made up, the judge states that he learned reliably that the county clerk, whose duty it was to draw the grand jury, was openly and avowedly in sympathy with the accused, and that the names in the box from which grand juries were to be drawn, and from which the last one had been drawn, were on slips of paper not folded so as to conceal the names, but open, so that the clerk, if he desired, could select particular ones, and that he (the judge) was reliably informed and believed that such clerk would, if possible, draw an unfair and partial grand jury, and that, as he thought it to be his duty and power, he opened the box in the presence of the prosecuting attorney and clerk of the circuit court, and found said slips of paper unfolded and the names unconcealed, so that any one drawing names could make choice, and therefore he ordered a new list. Section 2, c. 157, allows the court to open this box, and section 1 allows the court to order a new list. A large discretion is here given the court for the administration of justice. Surely for its mere exercise we cannot review it.

We must now inquire as to the third grand jury, for here is the kernel of the case. I view all antecedent circumstances as immaterial, as this grand jury and its indictment must stand or fall on their...