State ex rel. Dandy v. Thompson
| Citation | 148 W.Va. 263,134 S.E.2d 730 |
| Decision Date | 25 February 1964 |
| Docket Number | No. 12285,12285 |
| Court | Supreme Court of West Virginia |
| Parties | STATE ex rel. William DANDY v. William THOMPSON, Judge, etc., et al. |
Syllabus by the Court
1. Where the trial court erroneously permits inadmissible matters to be introduced into evidence, such error does not create a manifest necessity for a mistrial within the meaning and intent of Code, 1931, 62-3-7.
2. Point 2, Syllabus, State v. Little, 120 W.Va. 213 .
3. In a criminal trial the record must affirmatively show the presence of the accused during all parts of the trial wherein any action is taken that may affect his rights, and when the record affirmatively shows the absence of the accused during a material portion of the trial such absence constitutes a manifest necessity sufficient to permit the court to declare a mistrial.
4. The presence of the accused in a criminal trial is required during the argument on a motion for a mistrial.
5. 'It makes no difference upon what ground the court below decided the case, or the particular matter complained of, it is not the reasons assigned upon which the court decided a question that is to be reviewed, but the action of the court itself; and the question always in the appellate court is, whether the judgment to be reviewed is correct.' Shrewsbury v. Miller, 10 W.Va. 115, Pt. 3, Syllabus.' Point 5, Syllabus, Rollins v. Daraban, 145 W.Va. 178 .
Stanley E. Presier, W. Dale Greene, Charleston, for relator.
C. Donald Robertson, Atty. Gen., Andrew J. Goodwin, Asst. Atty. Gen., Arthur T. Ciccarello, Asst. Pros. Atty., Charleston, for respondents.
In this original proceeding, instituted in this Court on October 8, 1963, the petitioner, William Dandy, seeks a writ to prohibit the defendants, Honorable William Thompson, Judge of the Intermediate Court of Kanawha County, and Charles Walker, Prosecuting Attorney of Kanawha County, from proceeding further in the prosecution of the petitioner upon that certain felony indictment returned by the Grand Jury of Kanawha County at the June Term, 1963, of said court. The petitioner further seeks the dismissal of that indictment.
On October 14, 1963, this Court granted a rule against the defendants returnable October 22, 1963. At the request of the defendants for additional time in which to take further evidence, the case was continued until the January Term, 1964. This case was submitted for decision on January 8, 1964, upon the pleadings and depositions and upon the briefs and arguments of counsel.
William Dandy was indicted for a felony on two counts. Upon his motion the first count was dismissed. He was then brought to trial on the second count which charged him with buying and receiving, aiding in concealing and transferring certain stolen cigarettes to a person other than the owner thereof.
During the first day of the trial, August 5, 1963, the State, through its first witness, attempted to introduce into evidence certain cigarettes allegedly obtained by that witness. The petitioner objected to the admission of such cigarettes in evidence, claiming that the building from which they were taken was under the control of the petitioner and that such evidence was inadmissible inasmuch as it was seized without a search warrant.
The court, the petitioner and counsel for both parties then retired to chambers for the purpose of determining the admissibility of the cigarettes in evidence. Upon the hearing of evidence and argument of counsel the court concluded that the cigarettes were admissible. Subsequently, in open court and before the jury, the cigarettes in question were admitted as evidence in the case. The petitioner objected to the court's action and moved for a mistrial. This motion was overruled by the court. It appears from the record of the proceedings below that numerous motions for a mistrial were made on behalf of the petitioner during the trial.
After the State had concluded its case and had rested, the petitioner made several motions to exclude certain evidence and made further motions for a directed verdict, all of which were overruled by the court. The petitioner then proceeded with his defense. Thereafter, on August 8, 1963, certain evidence was introduced which tended to support the petitioner's theory relating to the admissibility of the cigarettes, the question into which inquiry had been made earlier in the trial. At this point the court declared a recess and requested the prosecuting attorney to further examine the law in regard to the admissibility of the cigarettes and to report his findings the next morning.
Upon complying with the court's request, the prosecuting attorney, on the morning of August 9, 1963, reported to the court that his research revealed that the petitioner had a legal right to object to the search and, since the cigarettes were seized without a search warrant they were inadmissible as evidence in the case. This session took place in the judge's chambers in the presence of the petitioner and his counsel. The petitioner, through his counsel, then moved to strike all of the testimony concerning the cigarettes and further moved to exclude the cigarettes as exhibits. The court expressed doubt that the error could be cured by a motion to strike the evidence. Counsel for the petitioner stated that if his motion to strike were granted the State's case could not be proved and that the petitioner would be entitled to a directed verdict of acquittal, for which he then moved. The court said it would not grant a directed verdict in favor of the petitioner, but would declare a mistrial. Defense counsel opposed the declaration of a mistrial and, after much discussion on this point, the court took a short recess.
After the recess, the record begins as follows: 'Thereupon, the Court, counsel for the respective parties, an the reporter, retired to chambers, out of the hearing of the jury, with the defendant not present, where the following transpired:
'THE COURT: I am going to declare a mistrial; then if you have something you want to look into, we can consider it at a later date * * *.'
Further resisting the action of the court in declaring a mistrial, counsel for the petitioner withdrew all prior motions for a mistrial and argued his position at length. Following further discussion between the court and counsel, the prosecuting attorney noted: 'I might mention to your Honor, the defendant has not been present during this last session here in chambers, so we could not proceed with the trial any further anyway.'
Immediately thereafter, the court, counsel and reporter returned to the courtroom where, in the presence of the petitioner, the court addressed the jury as follows: 'Ladies and gentlemen of the jury, because of error which the court has committed in permitting certain evidence to come into the trial, which the Court has concluded was not admissible, I am declaring a mistrial and discharging you from the case.' Defense counsel objected to the action of the court and again moved for a directed verdict and a dismissal of the indictment. Hearing on these motions was set for August 30, 1963, and then continued until September 3, 1963.
Further hearings were held on September 3, 19 and 20, 1963, during which the petitioner filed motions of autrefois acquit and pleas in bar to further prosecution of that case. Arguments were heard on these motions and the court and counsel discussed the order to be entered. The motions of the petitioner were promptly overruled. The court entered its order declaring a mistrial, stating its reasons therefor and overruling certain motions of the petitioner. The order apparently was entered on September 20, 1963, although it appears in the order book of the Intermediate Court as of August 9, 1963.
The reasons stated by the court for declaring a mistrial was objected to by the petitioner and gave rise to the principal questions to be resolved in this proceeding. As reflected by the order, the court declared a mistrial because it had erred in permitting the cigarettes and the testimony pertaining thereto to be introduced into evidence, and for the additional reason that the petitioner was not present during a portion of the trial. The latter reason refers to the second session in the judge's chambers on August 9, 1963, the transcript of the record thereof showing the absence of petitioner.
Many issues are raised in this proceeding, but the controlling question is whether there was a manifest necessity for the court to declare a mistrial for the reasons stated by it, namely, the following of inadmissible evidence over the objection of the petitioner, and the absence of petitioner during part of the trial. It is vigorously asserted on behalf of the petitioner that it was improper for the court to declare a mistrial by reason of its allowing inadmissible evidence; that petitioner's motion to strike the evidence and subsequent motions for a directed verdict should have been granted; and that the court's failure to so act should preclude further prosecution of this matter. The petitioner further urges that the mistrial could not be declared because of the absence of the petitioner for the reason that the court did not so state to the jury. Concerning the question of the petitioner's absence, depositions taken in this Court show, and it is readily admitted by the petitioner, that he was absent during a part of the proceedings in the court below. The petitioner nonetheless claims that since the court did not originally state that fact as a reason for granting a mistrial and, further, did not so inform the jury, it could not now validly declare a mistrial on that ground. Also, ...
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