Pinkerton v. Farr

• Decision Date: 16 December 1975
• Docket Number: No. 13593,13593
• Citation: 159 W.Va. 223,220 S.E.2d 682
• Parties: Clayton Bill PINKERTON v. P. Douglass FARR, Judge of the Circuit Court of Pleasants County, West Virginia.
• Court: West Virginia Supreme Court

Page 682

220 S.E.2d 682

159 W.Va. 223

Clayton Bill PINKERTON v. P. Douglass FARR, Judge of the Circuit Court of Pleasants

County, West Virginia.

No. 13593.

Supreme Court of Appeals of West Virginia.

Dec. 16, 1975.

Syllabus by the Court

1. Prohibition will lie to test the constitutionality of a statute.

2. Wherein the presumption contained in W.Va.Code, 1931, 61--6--7 destroys the presumption of innocence of an accused; infringes upon his right against self-incrimination; or fails to require proof beyond a reasonable doubt as the basis for a conviction, said statute is unconstitutional.

3. A statute which declares an accused guilty of conspiracy because he was present, aiding and abetting, during the commission of any of the multiple offenses mentioned therein, deprives the accused of his right to due process of law under the state and federal constitutions and is constitutionally unacceptable.

4. A criminal statutory presumption must be regarded as irrational and arbitrary, and house unconstitutional, unless, applying the rational connection test, it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.

5. To the extent that State v. Bingham, 42 W.Va. 234 (24 S.E. 883) (1896) is inconsistent with this decision, it is hereby overruled.

Campbell & Hanlon, Gene S. Campbell, David G. Hanlon, Harrisville, for relators.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Fredric J. George, Asst. Atty. Gen., Charleston, for respondent.

CAPLAN, Justice:

In this original proceeding in prohibition, the relators, Clayton Bill Pinkerton, Charles Pinkerton and George Miller, seek to prohibit P. Douglass Farr, Judge of the Circuit Court of Pleasants County, the respondent, from proceeding with the trial on an indictment charging the relators with a violation under W.Va.Code, 1931, 61--6--7, sometimes referred to as the Red Men's Act.

On January 13, 1975 the grand jury serving the Circuit Court of Pleasants County returned a two-count indictment, charging in the first count that the relators 'did feloniously and unlawfully combine and conspire together for the purpose of inflicting punishment and bodily injury, upon Danny Perry, and that, in pursuance of said combination and conspiracy', the relators feloniously assaulted said Perry with intent to maim, disfigure, disable and kill. The second count, not questioned in this proceeding, charges the relators with felonious assault of Danny Perry.

The relators here contest the constitutionality of W.Va.Code, 1931, 61--6--7. Under that statute it is a misdemeanor to conspire or combine with another for the purpose of inflicting bodily injury upon any other person or to take or deface property, whether or not any act is done in pursuance of such conspiracy or combination. It is therein further provided that if any person, pursuant to such conspiracy or combination 'shall inflict any punishment or bodily injury upon another person . . . he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than one nor more than ten years . . .' Pertinent to the proper consideration of the relators' contention is the further language in the above statute:

If, upon the trial of an indictment hereunder, it be proved that two or more persons, the defendant being one, were present, aiding and abetting in the commission of the offense charged therein, it shall be presumed that such offense was committed in pursuance of such combination or conspiracy, in the absence of satisfactory proof to the contrary. And all persons who were present, aiding and abetting, at the commission of any offense mentioned herein, shall be deemed conspirators within the meaning hereof.

In the trial court the relators sought dismissal of the indictment by filing their verified motions to dismiss and quash and also a demurrer to said indictment. Upon the overruling of said motions and demurrer this proceeding was instituted.

It has long been held by the decisions of this Court that prohibition will lie to test the constitutionality of a statute. Simms v. Dillon, 119 W.Va. 284, 193 S.E. 331 (1937). Furthermore, it has been decided by this Court that if the statute in question is unconstitutional, prohibition will lie to prevent the prosecution of an offense created by such statute. State ex rel. Heck's v. Gates, 149 W.Va. 421, 141 S.E.2d 369 (1965); Morris v. Sevy,129 W.Va. 331, 40 S.E.2d 874 (1946); Simms v. Dillon, supra. Accordingly, we hold that prohibition is a proper remedy.

Questioning the constitutionality of W.Va.Code, 1931, 61--6--7, the relators assert that said statute violates Article III, Sections 5 and 10 of the Constitution of West Virginia and the due process clauses of both the state and federal constitutions. More specifically, they contend that the presumption contained in the questioned statute creates unconstitutionality in the following particulars: (1) it infringes upon an accused's right against self-incrimination; (2) it destroys the presumption of innocence to which an accused is entitled; and, (3) it has evidentiary effect which permits conviction by presumption rather than by proof beyond a reasonable doubt.

The right of an accused to be free from self-incrimination is so well grounded in the jurisprudence of our country that citation of cases in support thereof should not be necessary. Constitutional provisions, both state and federal, clearly mandate that such freedom shall be preserved. These provisions expressly provide that no person in any criminal case shall be compelled 'to be a witness against himself.' U.S.Const., Amend. V; W.Va.Const., Art. III, § 5.

The statute under consideration, in relation to the instant case, requires a presumption of guilt of conspiracy if the state has proved that the defendant was present and aided and abetted in the felonious assault of the victim, unless the defendant comes forward with proof to the contrary. In other words, if the state proves that the defendant was guilty along with others of felonious assault, he shall be deemed guilty of felonious assault in pursuance of a conspiracy, unless he can prove his innocence of such conspiracy. The penalty for felonious assault is one to five years in the penitentiary or confinement in jail not exceeding twelve months. W.Va.Code, 1931, 61--2--9. For the offense of assault in pursuance of a combination or conspiracy the penalty is a term in the penitentiary of from one to ten years. W.Va.Code, 1931, 61--6--7.

Clearly, these are two separate and distinct offenses, in the latter of which the statute effects guilt unless the defendant testifies and offers proof to the contrary. That a defendant's right not to testify in a criminal case is protected by the constitutional mandate against self-incrimination has long and repeatedly been affirmed by this Court. State v. Bragg, 140 W.Va. 585, 87 S.E.2d 689 (1955); State v. Jones, 108 W.Va. 264, 150 S.E. 728 (1929); State v. Costa, 101 W.Va. 466, 132 S.E. 869 (1926); State v. Taylor, 57 W.Va. 228, 50 S.E. 247 (1905). The syllabus in State v. Costa, supra, meaningfully expresses this Court's view, as follows:

The ruling of a trial court in a criminal case, permitting the prosecuting officer, over objection of the defendant, to comment before the jury upon the failure of defendant to testify in his own behalf, violates section 19, chapter 152, Code, and section 5, article 3 of the Constitution, and constitutes reversible error.

The statute referred to in the above quoted syllabus is now contained in our Code as Chapter 57, Article 3, Section 6 and renders an accused a competent witness if he requests to be examined. However, the statute further provides: 'but his failure to testify shall create no presumption against him, nor be the subject of any comment before the court or jury by anyone.' This section must be read with W.Va.Const., Art. III, § 5. State v. Bragg, supra.

Commenting on the object of this statute, the Court in State v. Taylor, supra, said:

It is designed to enforce the common-law maxim, now embodied in section 5 of article 3 of the Constitution, called the 'Bill of Rights,' which protects the citizen from being required in any criminal case to be a witness against himself. One of the most excellent principles of the common law was that the state took upon itself the burden of proving the guilt of the prisoner. * * * So the law, having brought the prisoner into court against his will, Did not permit his silence to be treated or used as evidence against him. (Emphasis supplied)

We adhere to the principles above stated and, applying them to the statute in the instant case, hold that such statute, wherein it requires the defendant to testify in order to exonerate himself of guilt of the offense of conspiracy, violates W.Va.Const., Article III, § 5 and U.S.Const., Amend. V.

In addition to a defendant's right against self-incrimination, as discussed above, his right to a presumption of innocence throughout his trial is a right that has long been enforced and remains unquestioned in the administration of our criminal law. 'It is a well-established principle of the common law . . . that a person accused of crime is presumed to be innocent until he is proved guilty. In a criminal prosecution the state has the burden of establishing all the essential elements of the crime with which the accused is charged and must prove his guilt beyond a reasonable doubt. The accused may stand on this presumption of innocence'. 29 Am.Jur.2d, Evidence, § 225.

Reflecting the unanimity with which the courts and other legal authorities subscribe to the foregoing principle is the language of Mr. Justice White, who, in 1895, wrote: 'The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at...