Ex Parte James Dudley v. State.

• Decision Date: 29 March 1904
• Court: West Virginia Supreme Court
• Parties: Ex Parte James Dudley v. State.

55 W.Va. 472

Ex Parte James Dudley

v.State.

Supreme Court of Appeals of West Virginia.

Submitted March 9, 1904.

Decided March 29, 1904.

1. Indictment Order of Dismissal.

An order retiring an indictment for felony from the trial docket of a court is equivalent to the dismissal thereof, and the same may not thereafterwards on motion of the State be restored to the docket for trial, (p. 475.)

2. Indictment Discharge of the Accused.

If an indictment has been improperly placed on the trial docket and the accused has been arrested on a capias to answer the same, he may be discharged therefrom on a writ of habeas corpus, (p. 475.)

Error to Circuit Court, Cabell County.

Application of James Dudley for writ of habeas corpus. Erom an order refusing the writ, he brings error.

Reversed.

A. L. Hooten, for plaintiff in error. 'The Attorney General, for the State.

Dent, Judge:

James Dudley complains of a judgment of the circuit court of Mingo county, refusing to discharge him from custody on a writ of habeas corpus as being illegally held to answer an indictment against him found at the September term, 1899, and which was retired from the docket on the 8th day of January, 1901, and re-instated thereon by the order of the court on the 8th day of June, 1903, and a capias to answer the same under which he is now held in custody.

The statement of facts is as follows:

"On the 21st clay of May, 1895, James Dudley was convicted of a felony in the circuit court of Mingo county, West Virginia, and sentenced to confinement in the penitentiary for a term of eighteen years; on the 8th day of April, 1899, he was granted by G. W. Atkinson, the Governor of the State, a conditional pardon, and was liberated from the penitentiary in accordance with the terms thereof. On the 1st day of June, 1899, Dudley was arrested charged with having attempted to murder one A. B. Parlour, and was, on the 18th day of July, 1899, by order of the Governor returned to the penitentiary to serve out the balance of the sentence imposed on him, by reason of the breach of the condition of his pardon. At the September term, 1899, of the circuit court of Mingo county, the grand jury returned an indictment against Dudley charging him with having committed an assault on the 1st day of June, 1899, on A. B. Parlour with intent then and there to maim, disfigure, disable and kill, and on the 18th day of May, 1900, Dudley was, by order of the circuit court of Mingo county, taken from the penitentiary to Mingo county for trial on the above indictment, and was on the 18th day of September,

1900, by order of the circuit court, returned to the penitentiary to be therein confined under the former sentence of the court, the order reciting that the state was not ready to try the case by reason of the absence of a material witness. On the 8th day of January, 1901, on a motion of the state by its attorney, and for reasons appearing to the court, the circuit court of Mingo county entered an order retiring from the docket the indictment found against Dudley at the September term, 1899, for his attempt to kill Parlour. On the first day of May, 1903, Dudley presented to the circuit court of Marshall county, West Virginia, his petition for a writ of habeas corpus, praying for reasons therein assigned, and as set forth in this statement, that he be discharged from further confinement in the penitentiary. On the 11th day of June, 1903, the last named circuit court entered an order discharging Dudley from further confinement in the penitentiary by reason of the sentence imposed on him by the circuit court of Mingo county on the 21st day of May, 1895. On the 12th day of June, 1903, immediately upon being released from the penitentiary, Dudley was arrested by virtue of a capias issued by the clerk of the circuit court of Mingo county, and taken to Mingo county, and lodged in the county jail thereof. On the 22nd day of August, 1903, Dudley presented to the Judge of the Eighth Judicial Circuit of the State of West Virginia his petition for a writ of habeas cor- pus, praying for reasons therein assigned that he be released from the custody of the sheriff of Mingo county, and for such other, further and general relief as his case required and to the court might seem meet and proper, and on the 12th day of September, 1903, on final hearing the prayer of Dudley was refused and his petition was dismissed, from which order this writ was allowed. The contention of the plaintiff in error' is, that the order entered on the 8th day of January, 1901, by the circuit court of Mingo county, retiring the case against this plaintiff from the docket, had all the force and effect of a nolle pros., and worked a discontinuance of the same, and that the case having been retired from the docket, the capias upon...