Hollandsworth v. Godby

• Decision Date: 17 April 1923
• Docket Number: (No. 4844.)
• Citation: 117 S.E. 369
• Parties: Ex parte HOLLANDSWORTH. HOLLANDSWORTH v. GODBY.
• Court: West Virginia Supreme Court

117 S.E. 369

Ex parte HOLLANDSWORTH.HOLLANDSWORTH

v.GODBY.

(No. 4844.)

Supreme Court of Appeals of West Virginia.

April 17, 1923.

(Syllabus bp the Court.)

Original petition by Henry Hollandsworth for writ of habeas corpus discharging him from imprisonment. Writ awarded, and petitioner discharged.

C. M. Ward, of Beckley, and A. A. Lilly, of Charleston, for petitioner.

E. T. England, Atty. Gen., R. Dennis Steed, Asst. Atty. Gen., and Ben H. Ash-worth, of Beckley, for respondent.

LITZ, J. The petitioner, Henry Hollands-worth, by habeas corpus seeks discharge from imprisonment in the county jail of Raleigh county where he is now confined awaiting his trial on an indictment found at the January, 1921, term of the criminal court of that county, charging him with breaking and entering in the nighttime a storehouse belonging to one W. A. Fisher, situate in said county, and stealing therefrom certain mentioned articles of merchandise of the value of $420.

Petitioner in his petition avers that a warrant charging him with having committed said felony in the month of September, 1920, was issued by C. C. Calloway, a justice of the peace of Raleigh county, and by him delivered to L. M. Wheatley, a deputy sheriff of that county, for the arrest of petitioner who was then in the county of Mercer; that on or about the 27th day of November, 1920, said Officer Wheatley, assisted by Oscar Bennett and John M. Harrison, deputized for the purpose, arrested petitioner in Mercer county upon said warrant; that imme diately upon his arrest petitioner was taken by said officers to St. Luke's Hospital in the city of Bluefield, Mercer county, for treatment of wounds from which he was then suffering, and was there kept and detained in said hospital under said warrant until another warrant was sworn out in Mercer county, charging him with a felonious assault upon said Oscar Bennett; that petitioner, remaining in continuous custody from the time of his arrest under the first warrant, was thereafter taken from the hospital to the jail of Mercer county, and therein confined until January 24, 1921; that he was then removed to the state penitentiary, where he remained until September 2, 1922, serving a sentence of two years under conviction by the criminal court of Mercer county on indictment found at the January, 1921, term of said court for the felonious assault upon said Oscar Bennett; that in January, 1921, he was indicted by the criminal court of Raleigh county for the felony there charged against him, and on the 2d day of September, 1922, after the passing of three regular terms of that court from the finding of the indictment, on capias thereunder, was taken from the penitentiary to the jail of Raleigh county, where he is now confined awaiting trial on said charge; and that the failure to try him had not been due to his insanity or any of the other causes excusing such delay, set forth in section 25, c. 159, Barnes' Code 1923.

The respondent, A. M. Godby, jailer of Raleigh county, in his return denies, on information and belief, that petitioner was arrested on or about the 27th day of November, 1920, on the warrant charging him with a felony in Raleigh county, or that Deputy Sheriff Wheatley held petitioner in custody under said warrant, as alleged in the petition.

The affidavit of P. L. Blankenship, present sheriff of Raleigh county, filed in support of respondent's return,, states that petitioner was never in custody nor arrested on the Raleigh county charge until on or about the 1st day of September, 1922. Blankenship's term of office did not begin until January 1, 1921, and nothing is shown or stated entitling his affidavit to any weight. The petitioner files the affidavit of C. C Calloway, reciting the issuance of the warrant by him against petitioner and delivery of the same to Deputy Sheriff Wheatley, as alleged in the petition.

There is no denial that petitioner was in continuous custody as alleged in the petition; the only issue being as to whether this custody had its origin in his arrest on the Raleigh county charge. It seems that the petitioner resisted arrest in Mercer county on the original warrant, and in a shooting affray resulting between him and the of-fleers he and Officer Bennett were wounded; that instead of returning petitioner to Raleigh county on this warrant, he was held in Mercer county on the second warrant for the shooting of Bennett.

We think it sufficiently established that the petitioner was taken into custody in Mercer county on the warrant charging him with the offense for which he is now being held, and that the state's custody of him continued from then until he had served his sentence in the penitentiary for the Mercer county crime, during which time more than three regular terms of the criminal court of Raleigh county after his indictment in that court had passed. Section 14 of article 3 of the state Constitution requires the trial of those charged with crime "without unreasonable delay." Section 25, chapter 159, Code, provides:

"Every person charged with felony, and remanded to a circuit court for trial, shall be forever discharged from prosecution for the offense, if...