Noll v. Dailey

• Decision Date: 20 May 1913
• Citation: 79 S.E. 668,72 W.Va. 520
• Parties: NOLL v. DAILEY, Judge, et al.
• Court: West Virginia Supreme Court

79 S.E. 668

72 W.Va. 520

NOLL v. DAILEY, Judge, et al.

Supreme Court of Appeals of West Virginia.

May 20, 1913

Submitted April 29, 1913.

Syllabus by the Court.

An indictment cannot be quashed because it was found upon illegal evidence.

Prohibition lies to prevent a trial court from entertaining a plea to an indictment, challenging the legality or sufficiency of the evidence on which it was found.

Application for a writ of prohibition by the State, on the petition of Allen B. Noll, against Honorable R. W. Dailey, Judge, and others. Writ awarded.

Poppenbarger and Miller, JJ., dissenting.

Allen B. Noll, of Martinsburg, and Forrest W. Brown, of Charlestown, for petitioner.

WILLIAMS J.

Claude W. Stewart, who was indicted for felony at the January term of the circuit court of Berkeley county, appeared in court and tendered three several pleas in abatement averring that there was no legal evidence before the grand jury on which they could find the indictments. The attorney prosecuting for the state objected to the filing of the pleas and moved the court to require defendant to plead or demur to the indictments. The court overruled the motion and objection until the matters arising on the pleas in abatement should be determined; and the Attorney General and the attorney appointed to prosecute the case in the court below have applied to this court, on behalf of the state, for a writ of prohibition to prohibit R. W. Daly, judge of said court, from proceeding to try the matters set up in said pleas.

The law of this state does not permit the court to go behind an indictment to inquire into the evidence considered by the grand jury, either to determine its legality or its sufficiency. "An indictment cannot be quashed because it rests, in whole or part, on incompete nt evidence," is the rule that was declared in State v Woodrow, 58 W.Va. 527, 52 S.E. 545, 2 L.R.A. (N. S.) 862, 112 Am.St.Rep. 1001, 6 Ann.Cas. 180. That was the first case to come before this court involving the question. Woodrow had filed a plea in abatement alleging that the indictment was found against him on the testimony of his wife, an incompetent witness. The court rejected his plea and refused to quash the indictment, and this court sustained that ruling.

The practice in this respect, however, is not uniform throughout the country; some of the courts holding that, if the indictment is found entirely upon illegal evidence, it may be quashed upon plea in abatement. 22 Cyc. 205; 10 Enc. Pl. & Pr. 395. But a number of states, including Virginia and West Virginia, hold that an indictment returned by a grand jury properly constituted, cannot be attacked for want of legal evidence before the grand jury to support it. The law in these two states, on this subject, seems to have been so generally and so well understood that their courts of last resort were not called upon to pass upon it, until within very recent years. Woodrow's Case supra, and Wadley's Case, 98 Va. 804, 35 S.E. 452, appear to be the first cases in the Supreme Courts of the two states, respectively. A similar question arose in Massachusetts in 1830, upon a motion by counsel for accused requesting the court to instruct the grand jury in regard to the nature of the evidence proper to be received by them, and the motion was overruled. Says Parker, C.J., in his opinion in that case (Anonymous, 9 Pick. 495): "According to my recollection, this is the first attempt of the kind in this commonwealth. It is to be presumed that only proper evidence will be laid before the jury. *** If anything improper shall be given in evidence before the grand jury, the error may be corrected subsequently upon the trial before the petit jury."

Of course an indictment ought not to be found upon illegal evidence. But the impracticability of showing that it was found upon such evidence renders a plea in abatement or motion to quash on that ground improper. The testimony of a grand juror will not be received to impeach the indictment. 2 Bishop's New Crim. Proc. § 874. And in case a number of witnesses are examined by the grand jury, it would be impossible to ascertain by what evidence the grand jury were influenced. It is the body intrusted with the power to say when a crime has been committed, and when a prosecution should be begun against the person whom the evidence before them leads them to be lieve is probably the guilty party. According to our judicial system they are the tribunal representing the people, for the purpose of charging crime and designating the criminal. The evidence that satisfies them that probable cause exists for the prosecution of a certain person for a designated crime might not be enough to satisfy the court or a petit jury; and, to permit the court to inquire into the legality, or sufficiency, of the evidence on which the grand jury acted, would be to substitute, in a measure, the opinion of the court for that of the grand jury, and would ultimately lead to the destruction of the grand jury system. Such proceeding would also furnish opportunity for long and unnecessary delay in the trial of criminal cases and would be a useless incumbrance upon criminal procedure. Because the matter can be inquired into as well upon the trial of the indictment as upon the plea in abatement, and if it is made to appear that the indictment was found either upon illegal evidence, or without any evidence, and the state produces no other evidence at the trial than what was before the grand jury the prisoner will be vindicated as fully by an acquittal as he would be by quashing the indictment. But the state is entitled to produce at the trial new and additional evidence of guilt. It may not have had all its evidence before the grand jury. But if the indictment is...