Ex parte Anderson
| Decision Date | 23 October 1917 |
| Docket Number | 3503. |
| Citation | 94 S.E. 31,81 W.Va. 171 |
| Parties | EX PARTE ANDERSON. |
| Court | West Virginia Supreme Court |
Submitted October 16, 1917.
Syllabus by the Court.
A person held under an indictment, without a trial, for three full and complete regular terms of the court in which he is held to answer, after the term thereof at which the indictment was found, under circumstances which do not excuse the failure of the state to bring him to trial, by virtue of the exceptions in section 25 of chapter 159 of the Code (sec 5601) may obtain his discharge from prosecution on the indictment, on a writ of habeas corpus, although such terms were not consecutive and the judge of the court had, by an order entered of record, dispensed with juries for such terms, under the authority conferred upon him by section 7 of chapter 116 of the Code (sec. 4646), and although the trial court, after having overruled a motion for the prisoner's discharge upon such ground, had put him upon a trial which resulted in a conviction, and sentenced him to imprisonment.
The order dispensing with a jury, made under said section, does not preclude the court from ordering a jury in the term, in case of necessity therefor, wherefore such a term is a jury term, in contemplation of law, notwithstanding the entry of the order and lack of a jury summoned by the clerk, without a special order therefor made by the court or judge, as it would be ordinarily.
In clothing judges of circuit courts with power and authority provisionally to dispense with juries for particular terms when the circumstances warrant such action, by the passage of section 7 of chapter 116 of the Code (sec. 4646) the Legislature cannot be deemed to have intended to modify or impliedly amend section 25 of chapter 159 (sec. 5601) thereof, enacted for enforcement of the guaranty of trials of crimes and misdemeanors, without unreasonable delay, provided by section 14 of article 3 of the Constitution.
Habeas corpus by Ballard L. Anderson. Prisoner discharged from prosecution of indictment against him and from custody.
W. S Wysong and H. C. Thurmond, both of Webster Springs, for petitioner.
E. T. England, Atty. Gen., Henry Nolte, Asst. Atty. Gen., and J. M. Hoover, of Webster Springs, for respondent.
Having been put upon trial on an indictment for malicious wounding over his protest and claim of right to a discharge from prosecution, for the failure of the state to give him a speedy trial, found guilty of unlawful cutting and sentenced to imprisonment in the penitentiary for a period of one year Ballard L. Anderson seeks his liberation from custody.
In advance of the trial, he moved for his discharge, and, on that motion, set forth the grounds upon which he relied. This motion having been overruled he tendered a plea in writing, setting up the same facts, to which the court sustained an objection. Still denying the right of the state to put him on trial, and insisting upon his right to a discharge, he refused to plead to the indictment, whereupon the court directed a plea of not guilty to be entered for him, which was done, and the trial proceeded. As to his guilt or innocence of the offense charged against him, he introduced no evidence, but he objected to the introduction of that adduced by the state, and endeavored to avail himself, in the trial, of the facts urged for his discharge, but the court rejected the proof thereof.
The claim of right to a discharge, unsuccessfully so set up in the trial court, and enforcement of which is now sought in this court, is founded upon section 25 of chapter 159 of the Code (sec. 5601), a statutory provision so familiar to the members of the profession as not to require repetition here. Appropriateness of the remedy sought in this court is virtually admitted. However, it is established and placed beyond question by the decision in Ex parte Chalfant, 93 S.E. 1032, rendered at this term. If the prisoner was entitled to a discharge, at the time of the making of his motion therefor, it is not perceived that the trial court's denial thereof and enforcement of a trial to which the state could never be entitled would work any substantial distinction between the two cases. The statutory mandate for the discharge of a prisoner, under certain circumstances, is not a regulation of procedure in a trial, nor a prescription of a right to be preserved therein. It is a direction and mandate not to try. This is a necessary implication arising out of terms of the mandate. The express command to discharge, necessarily implying a command not to try, is a limitation upon the jurisdiction of the court, and its judgment, rendered in a trial it had no right to entertain, is obviously coram non judice. Ex parte Bornee, 76 W.Va. 360, 85 S.E. 529, L.R.A. 1915F, 1093. And a person held in custody under a void judgment may be liberated by the writ of habeas corpus. Exparte Lange, 18 Wall. 163, 21 L.Ed. 872; Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717; In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658.
The statute provides for three regular terms of court in Webster county in each year, to be held in January, May, and September. The prisoner was indicted at the May term, 1915, and the case was continued, on his motion, at the September term of that year. The state did not move for his trial at either the January or May term, 1916, but at each he renewed his recognizance. At the September term, 1916, the case was continued at the instance of the state, on account of the illness of a witness, and the recognizance was again renewed. He was not brought to trial at either the January or May term, 1917, but, at each of these terms, he renewed his recognizance. The trial to which reference has been made occurred at the September term, 1917. It was incontrovertibly proved on the motion for discharge in the trial court, and is admitted here, that the prisoner is not within any of the exceptions to the statute giving the right to a discharge, for failure of the state to bring him to trial before the lapse of three regular terms of the court, after the term in which the indictment was found. In other words, he has done no act that deprives him of the benefit of any term except the September term, 1915. The statute expressly deprives him of the benefit of the September term, 1916. None of the others, if terms contemplated by the statute, are excused in any way.
The principal defense is that three regular terms of the court had not elapsed, after the finding of the indictment, without a trial, because,...
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