Ex Parte Veltri.

• Decision Date: 21 January 1919
• Citation: 98 S.E. 146
• Court: West Virginia Supreme Court
• Parties: Ex parte VELTRI.

98 S.E. 146

Ex parte VELTRI.

Supreme Court of Appeals of West Virginia

Jan. 21, 1919.

(Syllabus by the Court.)

Habeas corpus by Bill Veltri to secure discharge from detention in jail by John L. Dougan, Sheriff of Monongalia County. Writ refused.

Lazzelle & Stewart, of Morgan town, for petitioner.

Cox & Baker, of Morgantown, for respondent.

MILLER, P. By habeas corpus petitioner seeks his discharge from imprisonment in the jail of Monongalia County upon a charge of murder, upon the ground that he is being illegally detained by respondent, the sheriff, for reasons hereinafter to be considered.

The return of the respondent, not controverted, is that he is holding petitioner under and by virtue of a warrant and mittimus Issued on December 2, 1918, by W. L Boughner, a justice of said county, charging him with the murder of one Tony Selario on the —— day of December, 1917, and also by virtue of another commitment issued by the same justice on the same charge on the 30th day of December, 1918.

The warrant and mittimus are in due form and charge an offense of which the justice had jurisdiction as an examining court; and his transcript, also made a part of the return, shows that on the return day of the warrant the body of the petitioner was pro-duced before him by the officer to whom the writ was directed, and that the petitioner waived a preliminary hearing and was thereupon by the order and mittimus aforesaid committed to the jail of said county to await the action of the circuit court touching the charge aforesaid.

Upon the face of this record no question of right, want of authority or jurisdiction of the justice appears, but the petitioner alleges as grounds for his release that the charge on which he is being held is identical in all respects with the crime with which he was accused in an indictment found by the grand jury attending said circuit court, on January 18, 1918. The October term, 1918, of said court, being the third term after the said indictment had been found, was still in session at the time of the issuance of the original warrant and mittimus by virtue of which petitioner was being held by respondent at the time he applied for and was awarded the present writ by this court. And his contention is that although before the end of the said third term, on December 3, 1918, the prosecuting attorney with the consent of the court entered a nolle prosequi as to said original indictment, and he was discharged from further prosecution thereon, and in as much as the court adjourned the said term without having brought him to trial on said indictment, he is now entitled to be discharged from further custody by virtue of section 25 of chapter 159 of the Code (see. 5601), containing what is known as the three term rule.

The question is thus presented, whether the petitioner is now entitled on this writ to be discharged from the custody of the sheriff, who is holding him not on the original indictment but on the new warrant and commitments by the justice exhibited with the return.

We have reached the conclusion that he is not; that habeas corpus is not available, at least at the present stage of the proceeding. Petitioner, as the record shows, was brought before the justice on the new warrant, waived examination, and was sent on to the circuit court to await the action of the grand jury. The justice thereby perhaps exhausted his jurisdiction over the petitioner and the subject matter of the accusation. The former charge and the indictment of the grand jury and the former proceedings of the court thereon were not before the justice in the last proceeding or in any way made the ground of a motion to discharge the petitioner. So the sole question presented on this writ is whether the warrant and commitment are in due form and sufficiently charge an offense. The jurisdiction of the justice and the formality and regularity of the writs are conceded.

The authorities hold almost without exception that the matters relied upon by petitioner are defensive in character and that they must be set up by proper motion or plea in the proceeding in which he is held to answer, and that former jeopardy, or any constitutional right occurring pending the proceeding, not involving the constitutionality of the act or statute, under which he is accused, must be asserted by way of defense and that habeas corpus is not available to review any error of judgment of the trial court. So hold the standard...