Ex Parte Chalfant.

• Decision Date: 16 October 1917
• Citation: 81 W.Va. 93
• Court: West Virginia Supreme Court
• Parties: Ex Parte Chalfant.

81 W.Va. 93

Ex Parte Chalfant.

Supreme Court of Appeals of West Virginia.

Submitted October 9, 1917.

Decided October 16, 1917.

1. Criminal Law Felony Time of Trial.

Section 23, chapter 145, of the Code, makes obtaining money, goods or the signature of any person by false pretenses, felonious offenses and punishable as prescribed thereby, (p. 95).

2. Same Trial for Felony Terms Discharge.

By section 25, of chapter 159, Code, one charged with a felony and held for trial is entitled to be discharged from prosecution if three regular terms of the court are allowed to elapse after the indictment without bringing him to trial, except for the reasons mentioned in the statute, and the fact that he has been tried and convicted on another indictment found cotemporaneously with the first and sentenced to imprisonment in the penitentiary therefor, will not excuse the failure of the state to bring him to trial on the other indictment nor prevent his discharge from prosecution thereon. (p. 95).

3. Same Failure to Bring to Trial Discharge Statute.

And it is not necessary in such case that the accused in order to obtain his discharge should show that after the indictmer.t he made demand for trial or was in any way prevented from doing so. It is the duty of the state to bring him to trial, if it would prevent his discharge, or excuse itself upon some one of the grounds prescribed by the statute, (p. 95).

Habeas corpus by C. E. Chalfant against C. D. Ball, sheriff, etc.

Prisoner discharged.

Somerville & Somerville and J. L. Whitten, for petitiooer. R. A. Blessing, for respondent.

Miller, Judge:

Upon a writ of habeas corpus sued out of this court, petitioner seeks his discharge from custody and from further prosecution upon nine of ten several indictments for felonies returned against him in October, 1913, in the circuit court of Mason County.

The record shows that on October 15, 1915, after his arrest upon said indictments, he appeared in said court, and the cases being continued on his motion, he then entered into a recognizance with sureties for his appearance on the 8th day of February, 1916, a day of a regular term of said court to be then held. On that day he did appear, and on the 9th day of February, 1916, he pleaded guilty to one of said indictments, with the understanding, on his part at least, as he alleges, that he was not to be thereafter prosecuted upon any of the other indictments, and the judgment of the court was that he be confined and imprisoned in the penitentiary of the state for the term of one year. He was thereupon remanded to jail there to remain in the custody of the sheriff until he should be delivered to a guard to be sent by the warden of the penitentiary to receive him. He was thereafter taken to the penitentiary where he remained in the custody of the state, under the order and judgment of said court, serving out the term of his imprisonment, until about December 9, 1916, when he was discharged, and when he was immediately taken into custody by the sheriff of Marshall County, the county in which the penitentiary is located, upon a capias issued out of the clerk's office of the circuit court of Mason County, on November 27, 1916, to answer an indictment for a felony at the next term of said court, and was on December 9, 1916, again delivered into the custody of the sheriff of said Mason County, where he remained until subsequently released on his recognizance, lastly on February 7, 1917, to appear at the June term, 1917, of said court, to answer the charges of felony alleged against him.

On the latter date he did appear in discharge of his recognizance, and then moved the court to be discharged from custody, which motion the court overruled, the grounds therefor alleged being the same as those now relied on for his discharge on habeas corpus, namely: First, because no offense is charged against him in said indictments or either of them; second, because three regular terms of the circuit court elapsed after said indictments were found against him, and after he was remanded or held for trial, without a trial being had thereon, wherefore, by virtue of section 25, chapter 159, of the Code, he is entitled to his discharge from further prosecution.

The first ground we think should be negatived. The point made is that the statute, section 23, chapter 145, Code, relating to the subject of obtaining the money, goods or the signature of any person by false pretenses, and under which, the several indictments were found, does not specifically declare the offense larceny, or forgery, or otherwise define the offenses. But the statute does say that one so obtaining money or property, the subject of larceny, shall be deemed guilty of the larceny thereof, and furthermore says that "every person so offending against any of the provisions of this section shall, upon conviction thereof, be confined in the penitentiary not less than one nor more; than five years", etc., clearly making all offenses thereunder felonies, punishable by confinement in the state prison. Section 1, chaster 152, Code, makes offenses punishable by death or confinement in the penitentiary, felonies, and all other offenses misdemeanors. If the statute was Avanting in the particulars pointed out other sections of the same chapter would be deficient for the like reason, as for example, sections 24a, 25-and 26. Moreover, the indictments charge petitioner with having by false pretenses obtained...