State ex rel. Coole v. Sims

• Citation: 133 W.Va. 619,58 S.E.2d 784
• Decision Date: 31 January 1950
• Docket Number: No. 10209,10209
• Court: Supreme Court of West Virginia
• Parties: STATE ex rel. COOLE, v. SIMS, State Auditor.

Page 784

58 S.E.2d 784

133 W.Va. 619

STATE ex rel. COOLE, v. SIMS, State Auditor.

No. 10209.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 11, 1950.

Decided Jan. 31, 1950.

Syllabus by the Court.

1. 'A finding by the Legislature of the existence of a moral obligation of the State, based upon facts which give rise to a juristic condition, is subject to investigation and consideration by the courts; and the determination of the existence of such obligation is a judicial, not a legislative, function.' State ex rel. Cashman v. Sims, Auditor, 130 W.Va. 430 .

2. Where a person has been convicted of a crime and imprisoned therefor, a subsequent pardon granted by the Governor of this State, under Section 11, Article VII of the Constitution, does not alone furnish a sound basis for a legislative finding of a moral obligation on the part of the State to compensate him for damages for injuries to his person or reputation, on the ground of his alleged innocence of the offense of which he was convicted.

3. An appropriation of a public funds by the Legislature to redeem a supposed moral obligation of the State, growing out of the conviction of and punishment for a crime allegedly committed by a person who claims to be innocent of such crime, and who asks of the State compensation and damages for injury to his person and reputation, will not, in any event, be made effective by mandamus or otherwise by this Court, in the absence of a clear showing that the claimant was innocent of the offense of which he was convicted.

Salisbury, Hackney & Lopinsky, Charleston, John G. Hackney, Charleston, Emerson W. Salisbury, Charleston, Jackson D. Altizer, Charleston, for petitioner.

William C. Marland, Atty. Gen., Eston B. Stephenson, Asst. Atty. Gen., Milton S. Koslow, Charleston, for defendant.

FOX, Judge.

This is a proceeding in mandamus seeking to compel Edgar B. Sims, as Auditor of the State of West Virginia, to honor a requisition in the sum of $5,000.00 in favor of J. W. Coole, authorized to be paid to him under Chapter 13, Acts of the Legislature, Regular Session, 1949, based upon the alleged illegal imprisonment of the said Coole in the jail of Jackson County, West Virginia and in the State Penitentiary, for an offense charged against him, and of which he claims to be innocent, giving rise, as the Legislature found, to a moral obligation on the part of the State to pay the same. The requisition was presented to the Auditor in late June, 1949, and was refused by him. On petition of the relator, filed herein on September 19, 1949, we awarded a rule requiring the said Auditor to appear and show cause why a peremptory writ of mandamus requiring him to honor such requisition should not be awarded.

The relator, J. W. Coole, was indicted by a grand jury of Jackson County, West Virginia, on November 7, 1939, in the name of Junior Coole, alias J. W. Coole, which indictment alleged that the said Coole, on the ___ day of October, 1939, did unlawfully, fraudulently, designedly and feloniously falsely pretend to one Ralph Mills that he was a farmer by the name of C. W. Lane, living in said county near the village of Kenna, and that as such pretended C. W. Lane he held in good faith a check pretended to be made to his order by one F. M. Cline, which he endorsed as said C. W. Lane, which check was in the words and figures following:

'Ripley, West Virginia Oct. 18, 1939

The Bank of Ripley

Pay to the

Order of C. W. Lane $30.50/100

Thirty and 50/100 Dollars

For Hogs

F. M. Cline'

Endorsed: 'C. W. Lane'

The indictment then further alleged that the said check was then and there used and transferred by said Coole to one Ralph Mills as a genuine check, for the purpose of purchasing hardware and other merchandise of the value of $8.22, which with consumers sales tax added thereto amounted to $8.39; and that said Coole then and there received on said check the sum of $22.11 in cash, which latter amount was received by him after the amount of the purchase price of the hardware and sales tax had been deducted from the amount of the check. It was alleged that the above described property so furnished and paid was that of J. B. Vail Hardware Store in the Town of Ripley, by which the said Ralph Mills was then the there employed as a clerk.

It will be noted that the offense charged against Coole was that of passing or uttering the check involved, and for the purposes aforesaid. There is no charge in the indictment that the check was written by Coole, and there is no testimony in the case tending to establish that it was written by him. The charge was that he fraudulently, falsely and feloniously pretended to hold in good faith the said check, and used the same to obtain goods and money.

Trial was had in the case in the Circuit Court of Jackson County at its November Term, 1939. The identity of J. W. Coole, the relator in this proceeding, as the person who uttered the said check, was attempted to be shown by testimony of seven witnesses, all of whom positively identified the relator as the person who had passed the check or had some connection therewith. One of these witness, C. W. Riddle, identified the relator as a man who appeared at the Hunter Hotel in Ripley and requested him to fill out a check for him, and that this request was made on October 18, 1939, the date of the check copied into the indictment. He also filled out another check on the same date. He says that he did not sign the check and merely filled out the name of the payee, the date and the amount of the check. The two checks filled in by him on that occasion were introduced in evidence in the trial, and the written portions of the check and the signature appear to be in the same handwriting, which, to some extent, raises doubt as to the credibility of Riddle's testimony. With this exception there is no doubt case upon the credibility of the witnesses who identified the relator as being the man who uttered the check set out in the indictment, and who obtained merchandise and money thereon.

The defense of the relator herein was in the nature of an alibi. He testified that prior to his imprisonment in the Jackson County Jail in early November, 1939, he had never been in Jackson County; and that on October 18, 1939, or thereabouts, when the check was supposed to have been uttered by him in said county he was elsewhere; and he offered other testimony to support that contention. The relator was represented by counsel of his own choosing, and made full defense to the charge against him. The jury sitting in the case returned the following verdict: 'We are jury find the defendant guilty as charged in the within indictment. We also recommend mercy.' A motion to set aside the verdict was promptly entered, which was not disposed of until April 6, 1940, at which time it was overruled, and the defendant, the relator here, sentenced to the penitentiary of this State, under Chapter 24 of the Acts of the Legislature, 1939, therein to be kept and treated in all respects according to law. Thereafter, an application was made to this Court for a writ of error to the judgment aforesaid, which application was denied on the 7th day of August, 1940.

The relator was confined in the Jackson County Jail from the date of his arrest in November, 1939, until on or about April 6, 1940, when he was removed to the penitentiary of this State where he remained until the 15th day of November, 1940, when he was released on parole. On the 17th day of June, 1948, he was, by the Governor of this State, granted a full pardon for the offense of which he had been convicted as aforesaid, it being stated in the pardon certificate that certain investigations 'offer strong indication of a miscarriage of justice in connection with the facts and evidence of the case.', referring to the case in which relator was convicted in the Circuit Court of Jackson County.

On October 8, 1948, the relator filed his petition in the State Court of Claims, praying for an award of damages in the sum of $50,000.00 for injury and damage to his person and reputation as the result of his wrongful conviction and confinement in jail and penitentiary. Evidence was taken in the case which came on for hearing in the Court of Claims on November 12, 1948, and an award made by a majority of the court in the amount of $10,000.00. Subsequently, this award was presented to the 1949 session of the Legislature, and an appropriation in the sum of $5,000.00 was made to be paid to the relator out of general fund revenues of the State.

Relator's claim is based upon the contention that it has been clearly established that he was not guilty of the offense of which he was convicted in the Circuit Court of Jackson County, notwithstanding the verdict of the jury aforesaid, and the judgment rendered thereon; and as a basis for said contention that: (1) The relator was not in Jackson County on the date when the check quoted in the indictment was uttered and that, in effect, the case is one of mistaken identity; (2) there is no showing that the relator wrote the said check or of the endorsement thereof; (3) subsequent to his arrest on the charge contained in the indictment, as later returned by the grand jury, other checks of like nature were passed throughout the Jackson County section, and perhaps elsewhere, with which relator could not have been connected; (4) the fact that a member of the Department of Public Safety had communicated to the prosecuting attorney of Jackson County his belief that relator was not guilty of the charge against him, by reason of the fact that he could not have written the checks, and the further fact that checks of that nature were circulated in that section subsequent to his arrest, and the failure of the prosecuting attorney to use his informant as a witness to develop that belief before the jury; and (5) the subsequent investigation made by the same member of the ...