State Ex Rel. Carl Rufus v. Easley
| Decision Date | 10 December 1946 |
| Docket Number | No. 9879,9879 |
| Citation | 129 W.Va. 410 |
| Parties | State ex rel. Carl Rufus v. D. M. Easley, Judge, etc., et al. 1946. |
| Court | West Virginia Supreme Court |
a verdict of not guilty, returned by the jury upon the trial of a bastardy proceeding, regular in form, and duly signed by the foreman, which represents the final agreement of the jury, should be received and entered by the trial court as the verdict of the jury in the case.
After a verdict is received, the trial court should promptly discharge the jury from further consideration of the case, and should refrain from any comment to the jury relating to any issue involved, the character of the verdict, or the nature of the evidence; and it is error to instruct the jury with respect to any such matters or to direct the jury to return to its room to consider the case further for the purpose of returning a different verdict.
There may not be two successive verdicts, one of not guilty and the other of guilty, as to the same defendant, by the same jury, in a single trial of a case.
A proceeding in bastardy, though criminal in form, is in substance a civil, not a criminal, action; and for that reason the constitutional provision which forbids any person, in any criminal case, to be twice put in jeopardy of life or liberty, for the same offense, does not apply to a defendant in whose favor a verdict of not guilty has been returned by the jury and who is subject to be tried again in such proceeding.
The writ of prohibition will not issue from this court to a trial court to inhibit further proceedings in a civil action pending in such court upon a mere showing that error has been committed by the refusal of that court to receive and enter a verdict of not guilty in favor of the defendant in such action, when it does not appear that the court is without jurisdiction of the proceeding, or has exceeded, or is about to exceed, its legitimate powers.
Original proceeding by the State, on the relation of Carl Rufus, against D. M. Easley, Judge of the Circuit Court of Wyoming County, and others, to prohibit further action in the prosecution of a bastardy proceeding against the relator.
Writ denied.
Grover C. Worrell, for relator.
Ira J. Partlow, Attorney General, W. Bryan Spillers, Assistant Attorney General, and Bailey & Shannon and Robert Bailey, Prosecuting Attorneys, for respondents.
This is an original proceeding in which the petitioner, Carl Rufus, seeks a writ from this Court to prohibit the Judge of the Circuit Court of Wyoming County and the prosecuting attorney of that county from further action in the prosecution of a bastardy proceeding now pending against him in that court. A rule having issued, the respondents appeared upon the day to which it was returnable and filed their demurrer and their answer to the petition.
The issues raised by the pleadings are issues of law. No issue of fact is involved.
The petitioner, the defendant in the bastardy proceeding, at the time it was instituted against him, was a soldier in the military service of the United States and had been on active duty for a period of approximately two years. While at his home in Mullins, Wyoming County, West Virginia, on furlough, he was arrested, on August 8, 1945, upon a warrant charging him with being the father of a bastard child. He entered into bond for his appearance at the October, 1945, Term of the Circuit Court of Wyoming County, and employed counsel to represent him in that proceeding.
The case was called for trial at that term of court. A motion for a continuance, by the attorney for the petitioner, based on his absence, was overruled by the the court, and the case was brought to trial before a jury. The only evidence produced, in the absence of the defendant, consisted of the testimony of the complainant. The jury returned a verdict of not guilty, which was regular in form and was signed by the foreman.
Immediately after the jury reported, the prosecuting attorney moved the court to set aside the verdict, for the assigned reason that there was no evidence upon which to sustain a verdict of not guilty. The court did not discharge the jury at that time, and while the motion to set aside the verdict was pending, a member of the jury stated that the jury entertained some question as to the legality of the trial, and remarked that in his opinion the jurors thought the defendant was guilty. The judge of the trial court then stated that that question was one for the court to determine. At that stage, the prosecuting attorney moved the court to instruct the jury upon the question. The attorney for the petitioner, the defendant in that proceeding, objected, but the judge told the jury that the question of the right to try the defendant at that time was not before the jury; that the question was for the court to determine; and that the only question for the jury to consider was whether the defendant was guilty or not guilty. After a second statement by a juror that the jury thought the defendant was guilty, and some remarks by other jurors and the prosecuting attorney, which need not here be detailed, the judge of the trial court, over the objection of the attorney for the defendant, after saying that he would ask the jury to return to its room and reconsider its action, instructed the jury that it would have to go by the evidence in the case which had not been contradicted; that the attorney for the defendant would not say whether the defendant was or was not the father of the child, and that he did not know whether the defendant was guilty; that the only witness had testified that he was; that whether she was telling the truth, he did not know; that if she was telling the truth, she was entitled to be believed; and that the jury should return to its room.
The jury then retired and, after a time, returned a verdict of guilty. The attorney for the defendant made timely objection to the foregoing action of the court and entered a motion to set aside the verdict of guilty. Action upon this motion was postponed until the February, 1946, term of the court, at which time the defendant renewed his motion to set aside the verdict of guilty and also moved the court to reinstate the verdict of not guilty which had first been returned by the jury. The court set aside the verdict of guilty and granted the defendant a new trial, but refused to reinstate the former verdict of not guilty. The petitioner, by this proceeding, seeks to prohibit the Circuit Court and the prosecuting attorney from again trying the case.
The petitioner bases his right to a writ of prohibition on two main grounds: (1) That the action of the Circuit Court, in rejecting the verdict of not guilty, in accepting a verdict of guilty, which was later set aside, and in undertaking to try the defendant again, after the return of a verdict of not guilty, violates the constitutional provision which forbids that any person, in any criminal case, be twice put in jeopardy of life or liberty for the same offense; and (2) that the Circuit Court is without jurisdiction to try the bastardy proceeding anew after the return of the verdict of not guilty at the former trial.
Prohibition lies, as a matter of right, in all cases of usurpation and abuse of power, when a trial court does does not have jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers. State v. Blankenship, 93 W. Va. 273, 116 S. E. 524; Weil v. Black, 76 W. Va. 685, 86 S. E. 666; Johnston v. Hunter, 50 W. Va. 52, 40 S. E. 448. It is used by appellate courts to restrain trial courts from acting without jurisdiction or from exceeding their legitimate powers, when damage or injustice may result.
Wood County Court v. Boreman, 34 W. Va. 332, 12 S. E. 490. The writ of prohibition is purely jurisdictional, and does not lie to correct errors or to usurp the functions of a writ of error or an appeal, Johnston V. Hunter, 50 W. Va. 52, 40 S. E. 448; Sperry v. Sanders, 50 W. Va. 70, 40 S. E. 327; Wood County Court v. Boreman, 34 W. Va. 362, 12 S. E. 490; Wolfe v. Shaw, 113 W. Va. 735, 169 S. E. 325; but when a court exceeds its powers in the trial or hearing of an action or suit, its order or decree may be corrected on writ of error or appeal after a final judgment or decree has been entered, and that fact does not in all cases preclude resort to the writ of prohibition. White Sulphur...
To continue reading
Request your trial
-
State ex rel. Cecil v. Knapp
...of a writ of error or certiorari, or of the remedy by appeal. Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370; State ex rel. Rufus v. Easley, 129 W.Va. 410, 40 S.E.2d 827; Lake O'Woods Club v. Wilhelm, 126 W.Va. 447, 28 S.E.2d 915; Wolfe v. Shaw, 113 W.Va. 735, 169 S.E. 325; Sperry v. Sand......
-
State ex rel. Lynn v. Eddy
...ex rel. Cecil v. Knapp, 143 W.Va. 896, 105 S.E.2d 569; State ex rel. Cosner v. See, 129 W.Va. 722, 42 S.E.2d 31; State ex rel. Rufus v. Easley, 129 W.Va. 410, 40 S.E.2d 827; Lake O'Woods Club v. Wilhelm, 126 W.Va. 447, 28 S.E.2d 915; White Sulphur Springs, Inc. v. Ripley, 124 W.Va. 486, 20 ......
-
West Virginia Secondary School Activities Commission v. Wagner
...v. Davis, 135 W.Va. 824, 65 S.E.2d 291; Village of Barboursville v. Hereford, Judge, 133 W.Va. 375, 56 S.E.2d 206; State ex rel. Rufus v. Easley, 129 W.Va. 410, 40 S.E.2d 827; State ex rel. Cosner v. See, 129 W.Va. 722, 42 S.E.2d 31; Morris v. Calhoun, 119 W.Va. 603, 195 S.E. 341; Wolfe v. ......
-
State ex rel. City of Huntington v. Lombardo
...the existence and availability of other remedies. State, etc. v. Knapp, 143 W.Va. 896, 913, 105 S.E.2d 569, 579; State, etc. v. Easley, 129 W.Va. 410, 414, 40 S.E.2d 827, 830; Lake O'Woods Club v. Wilhelm, 126 W.Va. 447, pt. 1 syl., 28 S.E.2d 915; White Sulphur Springs, Inc. v. Jarrett, 124......