Pyles v. Boles, No. 12280

CourtSupreme Court of West Virginia
Writing for the CourtCALHOUN; The majority opinion states that the prosecution waived the death penalty. I do not believe it is so clear that the prosecuting attorney can deprive the jury of the function of making that determination. In the recent case of Smith v. Winter
Citation135 S.E.2d 692,148 W.Va. 465
PartiesMarion PYLES v. Otto C. BOLES, Warden of the West Virginia Penitentiary.
Decision Date15 April 1964
Docket NumberNo. 12280

Page 692

135 S.E.2d 692
148 W.Va. 465
Marion PYLES
v.
Otto C. BOLES, Warden of the West Virginia Penitentiary.
No. 12280.
Supreme Court of Appeals of West Virginia.
Submitted Jan. 14, 1964.
Decided April 7, 1964.
Dissenting Opinion April 15, 1964.

Page 693

Syllabus by the Court

1. Section 14a, Article 2, Chapter 61, Code, 1931, as amended, creates a single capital offense.

2. The provisions of the statute relating to the various punishments to be imposed upon a person convicted of the crime of kidnapping, and which punishments depend upon and are governed by the evidence introduced at the trial, do not state or prescribe any element of the offense created by the statute.

Page 694

3. An indictment for a statutory offense is sufficient if, in charging the offense, it adopts and follows the language of the statute, or uses substantially equivalent language, and plainly informs the accused of the particular offense charged and enables the court to determine the statute on which the charge is founded.

4. An indictment based upon Section 14a, Article 2, Chapter 61, Code, 1931, as amended, which specifically charges that the accused did unlawfully and feloniously, by force, threat, duress, fraud and enticement, take, confine, conceal, decoy, inveigle, entice away and otherwise kidnap and transport, within Monongalia County, and did hold and detain in that county, against his will and without his consent, a designated person, for the purpose and with the intent of taking and demanding advantage, concession and other thing from such person, and did also, with a dangerous weapon, unlawfully and feloniously, threaten and force such person, against his will and without his consent, to transport the accused from Preston County, West Virginia, to and in Monongalia County, West Virginia, to the advantage, concession and other thing [148 W.Va. 466] of the accused, and which also charges the accused with the commission of some of the same acts in Preston County, sufficiently charges the accused with the commission in Monongalia County of the single offense of kidnapping created by the statute and is a valid indictment for that statutory offense.

5. 'Immaterial, unnecessary and harmless averments, which might be omitted without affecting the charge in an indictment against the accused and which need not be proved, may be properly considered and rejected as surplusage.' Point 1, syllabus, State v. McGraw, 140 W.Va. 547 [85 S.E.2d 849].

6. An indictment which charges an offense in the language of the statute which creates such offense will not be held to be invalid because it contains surplus matter.

7. 'Where a statute enunciates a series of acts, either of which separately or all together may constitute the offense, all of such acts may be charged in a single count, for the reason that, notwithstanding each act may be itself constitute the offense, all of them together do no more, and likewise constitute but one and the same offense. In such case, the prosecution, as a general rule, will not be put to an election.' Point 5, syllabus, State v. Joseph, 100 W.Va. 213 [130 S.E. 451].

8. The allegation in a single count of an indictment of numerous acts committed by the accused in one county and of the acts committed by the accused in another county, all of which singly and together constitute one offense, did not result in any prejudice to any right of the accused for the reason that notwithstanding each act may by itself constitute the offense all of them together do no more and constitute only one and the same offense.

9. The allegations in an indictment charging various and specific acts committed by the accused in Monongalia County, particularly the acts of taking, confining, concealing, transporting, holding and detaining the victim in that county, sufficiently[148 W.Va. 467] inform the accused of the character and cause of the accusation against him and satisfy the requirement imposed by Section 14, Article III, of the Constitution of this State, that in all trials of crimes and misdemeanors the accused shall be fully and plainly informed of the character and cause of the accusation.

10. The allegations of an indictment which charge the accused with the commission of numerous and specific acts in Monongalia County, particularly the acts of taking, confining, concealing, transporting, holding and detaining the victim in Monongalia County, are sufficient to lay the venue of the offense in that county and satisfy the requirement of the provisions of Section 14b, Article 2, Chapter 61, Code, 1931, as amended, that the venue of the offense of kidnapping shall lie in the county where the person alleged to have been kidnapped was held or detained, or in the county through

Page 695

which such person was conducted or transported; and such allegations likewise fully comply with the requirement of Section 14, Article III, of the Constitution of this State, that trials of crimes and misdemeanors, unless therein otherwise provided, shall be in the county where the alleged offense was committed, unless upon petition of the accused, and for good cause shown, trial of the offense is removed to some other county.

11. When the record of a court of general jurisdiction is merely silent with respect to a matter affecting its jurisdiction or the regularity of its procedure, the presumption that it satisfied and complied with all jurisdictional and procedural requirements for the entry of a valid judgment will be accorded prevailing force and effect.

12. 'The power of a court having jurisdiction over a particular subject matter to render a judgment or decree affecting the same cannot be attacked collaterally, unless it appears from the record of the proceeding in which the judgment or decree is entered that the court acted without jurisdiction.' Point 1, syllabus, Lemley v. Wetzel Coal and Coke Company, 82 W.Va. 153 [95 S.E. 646].

13. A habeas corpus proceeding is not a substitute for a writ of error or other appellate process, and a valid judgment entered[148 W.Va. 468] in a criminal proceeding in which the court has jurisdiction of the subject matter and the parties can not be assailed or disturbed in a habeas corpus proceeding.

C. Donald Robertson, Atty. Gen., Claude A. Joyce, Albert L. Sommerville, Asst. Attys. Gen., Charleston, for plaintiff in error.

Rickey & Chase, J. K. Chase, Jr., Moundsville, for defendant in error.

HAYMOND, President:

In this habeas corpus proceeding instituted in the Circuit Court of Marshall County, West Virginia, April 1, 1963, and now in this Court upon writ of error, the petitioner, Marion Pyles, seeks a writ to require the defendant, Otto C. Boles, Warden of the West Virginia Penitentiary, to release the petitioner from confinement in the penitentiary to which he was committed by a judgment of the Circuit Court of Monongalia County, West Virginia, rendered June 5, 1961, which sentenced the petitioner to be confined in the penitentiary of this State for a period of sixty years.

The petitioner contended that the indictment charging him with the crime of kidnapping John W. Nine was void and that the circuit court was without jurisdiction to try and convict the petitioner upon the indictment and to impose the sentence of confinement in the State penitentiary.

Upon the hearing upon the petition, the amended return of the defendant to the petition, the demurrer and the motion to quash of the defendant, and the argument of the attorneys in behalf of the respective parties, the circuit court, by final order entered June 13, 1963, awarded[148 W.Va. 469] the writ applied for by the petitioner and ordered the defendant forthwith to release the petitioner from his confinement in the West Virginia Penitentiary. To that judgment this Court awarded this writ of error and supersedeas September 23, 1963, upon the application of the defendant.

On May 1, 1961, during the April 1961 Term of the Circuit Court of Monongalia County, West Cirginia, the petitioner, Marion Pyles, was indicted under Section 14a, Article 2, Chapter 61, Code, 1931, as amended, for the crime of kidnapping John W. Nine. The indictment, which contains one count, charged that the petitioner in April 1961, in Monongalia County, did unlawfully and feloniously, by force, threat, duress, fraud and enticement, take, confine, conceal and decoy, inveigle and entice away, and otherwise kidnap, in Preston County, West Virginia, and transport within Monongalia County, and hold and detain in that county against his will and without his consent, John W. Nine, for the purpose and with

Page 696

the intent of taking and demanding advantage, concession and other thing from John W. Nine, and that the petitioner did, with a dangerous weapon, a sawed off shot gun and pistol, unlawfully and feloniously theaten and force John W. Nine, against his will and without his consent, to transport Marion Pyles from Preston County, West Virginia, to and in Monongalia County, West Virginia, to the advantage and concession of Marion Pyles, against the peace and dignity of the State.

The petitioner was tried upon the foregoing indictment in the Circuit Court of Monongalia County on May 15, 1961, and was by the jury found guilty of the offense as charged in the indictment. The State having waived the death penalty, the circuit court by order entered June 5, 1961, sentenced the petitioner to be confined in the penitentiary of this State for a term of sixty years.

The evidence introduced at the trial in the Circuit Court of Monongalia County upon the indictment against the petitioner and any motions made by the petitioner at such trial are not included in the record of this proceeding[148 W.Va. 470] and are not before this Court upon this writ of error. The only portions of the record of the criminal proceeding in the Circuit Court of Monongalia County incorporated in the record of this proceeding are the indictment and the court orders which record the...

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32 practice notes
  • State v. Cook, No. 16183
    • United States
    • Supreme Court of West Virginia
    • 15 Julio 1985
    ...157 W.Va. 939, 206 S.E.2d 415 (1974); Syl. pt. 3, State ex rel. Cogar v. Haynes, 154 W.Va. 805, 180 S.E.2d 492 (1971); Pyles v. Boles, 148 W.Va. 465, 135 S.E.2d 692 (1964). Clearly, count two of the appellant's indictment charging him with aggravated robbery, was unnecessary under State v. ......
  • State ex rel. McMannis v. Mohn, No. 14145
    • United States
    • Supreme Court of West Virginia
    • 30 Enero 1979
    ...stated that "(a) habeas corpus proceeding is not a substitute for a writ of error or other appellate process . . ." Pyles v. Boles, 148 W.Va. 465, 490, 135 S.E.2d 692, 707 (1964), Cert. denied, 379 U.S. 864, 85 S.Ct. 130, 13 L.Ed.2d 67; State ex rel. Housden v. Adams, 143 W.Va. 601, 605, 10......
  • State v. Rummer, No. 21095
    • United States
    • Supreme Court of West Virginia
    • 28 Mayo 1993
    ...three different ways of committing the same crime. This Court rejected the majority's argument in this very regard in Pyles v. Boles, 148 W.Va. 465, 135 S.E.2d 692 (1964). In Pyles, the question was whether W.Va.Code 61-2-14a [1933] 11 defined several discrete offenses or one offense of kid......
  • State ex rel. Smith v. Boles, No. 12485
    • United States
    • Supreme Court of West Virginia
    • 12 Enero 1966
    ...judgment will be accorded prevailing force and effect. State ex rel. Massey v. Boles, 149 W.Va. 292, 140 S.E.2d 608; Pyles v. Boles, 148 W.Va. 465, 135 S.E.2d 692, certiorari denied, 379 U.S. 864, 85 S.Ct. 130, 13 L.Ed.2d 67; State ex rel. Ashworth v. Boles, 148 W.Va. 13, 132 S.E.2d 634; Bo......
  • Request a trial to view additional results
32 cases
  • State v. Cook, No. 16183
    • United States
    • Supreme Court of West Virginia
    • 15 Julio 1985
    ...157 W.Va. 939, 206 S.E.2d 415 (1974); Syl. pt. 3, State ex rel. Cogar v. Haynes, 154 W.Va. 805, 180 S.E.2d 492 (1971); Pyles v. Boles, 148 W.Va. 465, 135 S.E.2d 692 (1964). Clearly, count two of the appellant's indictment charging him with aggravated robbery, was unnecessary under State v. ......
  • State ex rel. McMannis v. Mohn, No. 14145
    • United States
    • Supreme Court of West Virginia
    • 30 Enero 1979
    ...stated that "(a) habeas corpus proceeding is not a substitute for a writ of error or other appellate process . . ." Pyles v. Boles, 148 W.Va. 465, 490, 135 S.E.2d 692, 707 (1964), Cert. denied, 379 U.S. 864, 85 S.Ct. 130, 13 L.Ed.2d 67; State ex rel. Housden v. Adams, 143 W.Va. 601, 605, 10......
  • State v. Rummer, No. 21095
    • United States
    • Supreme Court of West Virginia
    • 28 Mayo 1993
    ...three different ways of committing the same crime. This Court rejected the majority's argument in this very regard in Pyles v. Boles, 148 W.Va. 465, 135 S.E.2d 692 (1964). In Pyles, the question was whether W.Va.Code 61-2-14a [1933] 11 defined several discrete offenses or one offense of kid......
  • State ex rel. Smith v. Boles, No. 12485
    • United States
    • Supreme Court of West Virginia
    • 12 Enero 1966
    ...judgment will be accorded prevailing force and effect. State ex rel. Massey v. Boles, 149 W.Va. 292, 140 S.E.2d 608; Pyles v. Boles, 148 W.Va. 465, 135 S.E.2d 692, certiorari denied, 379 U.S. 864, 85 S.Ct. 130, 13 L.Ed.2d 67; State ex rel. Ashworth v. Boles, 148 W.Va. 13, 132 S.E.2d 634; Bo......
  • Request a trial to view additional results

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