Linger v. Jennings, 10915
| Decision Date | 10 September 1957 |
| Docket Number | No. 10915,10915 |
| Citation | 143 W.Va. 57,99 S.E.2d 740 |
| Court | West Virginia Supreme Court |
| Parties | Eugene Henry LINGER v. Honorable J. Dowell JENNINGS, Judge, etc. |
Syllabus by the Court
1. Section 7, Article 7, Chapter 52, Acts of the Legislature, Regular Session, 1947, is not unconstitutional as being violative of Article VI, Section 30, of the West Virginia Constitution.
2. In the enactment of a statute, the Legislature is presumed not to enact a statute which is violative of any of the provisions of the Constitution of the United States or the Constitution of West Virginia.
3. The State, having by its Constitution and statutory law provided for the right of a defendant in a criminal proceeding to apply for a writ of error and supersedeas, cannot be legislative enactment favor one class of indigent defendants over any other class of indigent defendants in criminal proceedings.
Linn Mapel Brannon, Weston, John S. Stump, Jr., Clarksburg, for relator.
W. W. Barron, Atty. Gen., W. Bernard Smith, Asst. Atty. Gen., for respondent.
RILEY, President.
In this original proceeding in mandamus this Court on July 5, 1957, issued a rule directed to the Honorable J. Dowell Jennings, Judge of the Twenty-sixth Judicial Circuit, directing such Judge to show cause, if any, why a writ should not be issued, commanding him to authorize and direct Ruth Chartrand, official Court Reporter of the Circuit Court of Upshur County, to furnish a transcript of the testimony and proceedings of the trial of the relator, in which the relator was convicted of murder of the first degree without recommendation for clemency, or such part or parts thereof as counsel for relator shall indicate may be necessary therefor, and such part or parts thereof, in addition to the part or parts indicated by counsel for relator as may be necessary, as the Circuit Court of Upshur County in such order may direct, without charge to relator, for use in seeking a writ of error and supersedeas from this Court to the judgment of conviction of the Circuit Court of Upshur County.
At a special term of this Court, held on July 18, 1957, the respondent Judge having theretofore interposed a demurrer to relator's petition, and the relator having moved to amend the petition by incorporating therein the grounds of relator's motion for a new trial, this Court denied the motion to amend, and, upon consideration of the allegations of the petition and respondent's demurrer thereto, entered an order molding the rule, and, as molded, ordered that a peremptory writ of mandamus be awarded, directed to the respondent Judge, 'commanding him as such official to enter an order authorizing and directing Ruth Chartrand, the official Court Reporter of the Circuit Court of Upshur County, to furnish, without charge to petitioner, a transcript of such part or parts of the testimony and proceedings had upon petitioner's trial mentioned and described in his petition, as his counsel may deem necessary and the Court in such order may direct, for use in seeking writ of error and supersedeas in this Court to the judgment of the Circuit Court of Upshur County rendered in said trial, and to provide in such order that the cost of such transcript be certified to the Auditor of the State of West Virginia for payment according to law.'
The respondent Judge by his demurrer to the petition admits: (1) That the relator is an indigent person; (2) that respondent has refused to issue an order directing the official Court Reporter to prepare a transcript of the record, the cost to be paid by the Auditor of the State of West Virginia; and (3) that relator was convicted by a jury of the Circuit Court of Upshur County of murder of the first degree without recommendation for clemency.
The only statute in this State which expressly requires a circuit court to order that a defendant in a criminal case be furnished a transcript of the record at the cost of the State, is Section 7, Article 7, Chapter 52, Acts of the Legislature, Regular Session, 1947, which reads:
'In any case wherein the court has appointed counsel for an indigent person under indictment for either a misdemeanor or felony and such indigent accused has been tried and found guilty under such indictment and desires to seek an appeal or writ of error from the court's judgment on such conviction, the court, upon written request of such convicted person's counsel setting forth the grounds upon which the appeal or writ of error will be sought, shall authorize and direct the court reporter to furnish a transcript of the testimony and proceedings of the trial, or such part or parts thereof as counsel shall have indicated in his request to be necessary, to the convicted person, without charge to him, for use in seeking his appeal or writ of error, and the cost of such transcript in the case of a misdemeanor conviction shall be certified by the judge of the court to the county court of the county wherein the accused person was convicted and shall be paid out of the county treasury thereof, and in cases of felony convictions the cost of such transcript shall be certified by the judge of the court to the auditor of the state and shall be paid out of the treasury of the state from the appropriation for criminal charges.'
Initially it is to be noted that in this State a convicted defendant in a criminal case is not entitled to a writ of error as a matter of right. West Virginia Constitution, Article VIII, Section 6, provides: 'A writ of error, supersedeas, or appeal shall be allowed only by the supreme court of appeals, or a judge thereof, upon a petition assigning error in the judgment or proceedings of the inferior court and then only after said court or judge shall have examined and considered the record and assignment of errors, and is satisfied that there is error in the same, or that it presents a point proper for the consideration of the supreme court of appeals.' But the very constitutional provision which withholds from a defendant in a criminal proceeding a writ of error from this Court to a judgment of conviction entered in the trial court as a matter of right, gives to such defendant the right to apply for such writ of error, which right implies an effective application, and without a transcript of the record and proceedings such right is withheld.
The relator contends: (1) That Section 7, Article 7, Chapter 52, Acts of the Legislature, Regular Session, 1947, properly construed, constitutes a mandatory direction to a trial judge in a criminal proceeding to order a transcript to be furnished a defendant therein; and (2) that without resort to the statute, relator is entitled to the relief prayed for by way of mandamus under the common law as applied to constitutional provisions.
The title of this Act reads: 'An Act to amend article seven, chapter fifty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding to said article a new section to be designated section seven, relating to the provision of and payment for transcripts of testimony and proceedings in trials of indigent persons convicted of a misdemeanor or felony.' The subtitle of the article itself, as inserted in Michie's Code, reads:
On this basis it is contended by counsel for relator...
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...be administered without sale, denial or delay.11 State ex rel. Payne v. Walden, 156 W.Va. 60, 190 S.E.2d 770 (1972); Linger v. Jennings, 143 W.Va. 57, 99 S.E.2d 740 (1957).12 Those two tests are the rational relationship test under which a legislative classification must be sustained unless......
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Peters v. Narick
...be administered without sale, denial or delay.11 State ex rel. Payne v. Walden, 156 W.Va. 60, 190 S.E.2d 770 (1972); Linger v. Jennings, 143 W.Va. 57, 99 S.E.2d 740 (1957).12 Those two tests are the rational relationship test under which a legislative classification must be sustained unless......
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