Ex Parte : G. C. Hickey.

• Decision Date: 22 March 1923
• Docket Number: No. 4867.,4867.
• Citation: 93 W.Va. 411
• Court: West Virginia Supreme Court
• Parties: Ex Parte : G. C. Hickey.

93 W.Va. 411

Ex Parte : G. C. Hickey.

No. 4867.

Supreme Court of Appeals of West Virginia.

Submitted March 21, 1923.

Decided March 22, 1923.

Habeas Corpus Discharge of Prisoner Held Properly Denied.

Upon an application for discharge by writ of habeas corpus. where it appears that the prisoner has been arrested upon a warrant, duly issued by a justice of the peace upon complaint and information, on oath, of some credible person, charging that the prisoner was guilty of the offense of being an accessory to a murder committed in the county, and arraigned therefor before such justice and that he waived his preliminary hearing and was regularly committed to the custody of the jailer, discharge of the prisoner will be refused, although he states in his petition, verified, that at the time of his preliminary hearing another warrant for the same offense was issued by the justice who inserted therein the name of the jailer, then present, as the person upon whose information that warrant was issued.

Original petition of G. C. Hickey against Don Chafin, Sheriff, and others for a writ of habeas corpus for release from custody.

Petitioner remanded.

H. W. Houston, C. J. Van Fleet and T. C. Townsend, for petitioner.

A. M. Belcher, and Chafin & Estep, for respondents.

Lively, Judge:

G. C. Hickey in his petition alleges that he was arrested by deputy sheriffs of Logan county, upon some fictitious charge, on the 24th of February, 1923, while returning to his home from Berkeley Springs where he had been summoned as a witness in a criminal prosecution, and lodged in the jail of Logan county, and at his request was arraigned before G. F. Gore, a justice of the peace of that county, on the 27th day of that month. He charges that the prosecuting attorney of that couny prepared a warrant at the pre- liminary hearing and inserted the name of W. E. White, the jailer of the county then present in charge of the prisoners as the person upon whose complaint the warrant was issued, and that the warrant charges him with being an accessory before the fact to the murder of John Gore, John Caffago and James Munsey, in Logan county, in August, 1921. He avers that he was then taken before the judge of the circuit court of that county upon an application for bail, which, upon a hearing, was refused; and the evidence taken on the hearing is made a part of his petition for habeas corpus. Petitioner charges that he is held for no purpose other than to be punished because of some personal disappointment on the part of the prosecuting attorney with respect to the prosecution of a criminal case against one Frank Keeney, in which he, Hickey, was summoned as a witness at the trial to have been had at Berkeley Springs, and from which he was returning at the time of his arrest; that the only pretense of any offense committed by him with reference to the crime with which he is charged is contained in a statement alleged to have been made by him to one Albert Belcher, which alleged statement is made part of the record. He charges in substance that his imprisonment is the result of ill founded persecutions by the officers of Logan county against persons who have incurred their ill will or disapproval. He does not aver in his petition that he is innocent of the charge for which he is being held, but possibly that may have been intended to be included as a part of the petition. He charges that he is restrained of his liberty against his will and without lawful authority and prays to be discharged on a writ of habeas corpus. The writ was issued in accordance with his prayer against the sheriff and jailer of Logan county, who appeared by counsel, demurred to the petition and moved to quash the same and filed a return denying the illegality of the restraint of petitioner and averring that Hickey was arrested on a warrant issued by Fulton Mitchell, a justice of Logan county, after due complaint had been made before said justice that Hickey had committed a felony in Logan county, a copy of which warrant

so issued is made a part of the return; that after his arrest he was placed in the jail of said county, and some time thereafter was arraigned before G. F. Gore, a justice of the peace of Logan county upon said charge, and thereupon he waived a preliminary examination and was remanded to jail to await the action of the grand jury to be called at the April term of said court; that he afterwards applied for bond to the judge of the circuit court which was refused upon a hearing, and was remanded to jail by said judge to await the action of the grand jury. Respondents deny knowledge of any matters set forth in the petition relative to the spite or ill feeling therein alleged to exist on the part of certain persons against the petitioner. The return denies such allegations of the petition and says that these allegations are immaterial so far as respondents are concerned; and respondents aver that they have simply carried out their duties as public officers and are detaining the applicant under due process and authority of law.

It will be observed from the petition that the claim on which release from imprisonment is sought by this writ is that the charge of felony in the murder of Gore is fictitious and is the result of (1) spite and ill feeling on the part of certain officials toward the applicant arising out of his connection as a witness with the criminal prosecution against Keeney; and (2) that the warrant upon which he was tried at the...