State ex rel. Farley v. Kramer
| Decision Date | 24 July 1969 |
| Docket Number | No. 12745,12745 |
| Parties | STATE ex rel. David H. FARLEY v. H. Nickell KRAMER, Judge, Circuit Court, Summers County, et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. Where an indictment for murder was returned by a grand jury at a regular term of a circuit court and proceedings thereon were continued on the motion of the accused until the next regular term of the court, during which latter term the case was regularly set for trial, but during which term, at the instance of the accused, the trial court held that the indictment was void; where a second indictment for the same offense was returned against the accused at the next succeeding regular term of the court, at which term the accused by counsel filed various pleadings and motions challenging the legal validity of the second indictment; where, in response to the various attacks made upon the validity of the second indictment, that indictment likewise was held by the trial court to be void and was dismissed at a special term of court held prior to the commencement of the third regular term of court following the regular term at which the second indictment had been found, the accused is not entitled to a writ of prohibition to be awarded by this Court to prevent a trial of the accused upon the third indictment found against him upon the same charge of murder which was charged in the first and second indictments, where the third indictment was found by a grand jury during the third regular term following the regular term at which the second indictment was found, and the accused, by reason of the 'three term' rule provided for in Code, 1931, 62-3-21, as amended, is not entitled to be forever discharged from prosecution for the alleged offense.
Stanley E. Preiser, Charleston, for relator.
Leo Catsonis, Asst. Atty. Gen., Charleston, for respondents.
In this proceeding in prohibition instituted in this Court pursuant to its original jurisdiction in cases of this character, David H. Farley, the relator, seeks to prohibit Honorable H. Nickell Kramer, Judge of the Circuit Court of Summers County, and Honorable Thomas L. Read, Prosecuting Attorney of Summers County, as respondents, from proceeding to try the relator upon an indictment for murder returned against him on May 21, 1968, by a grand jury during the regular May, 1968, term of the Circuit Court of Summers County. The indictment charges the relator with having theretofore murdered one Robert H. Bailey. It is the third indictment, two prior indictments for the same offense having been held by the trial court to be invalid at the instance of the accused, the relator in this case.
In the prohibition petition, the relator asserts that 'he should be forever discharged from prosecution for the offense' charged in the indictment by reason of the provisions of Code, 1931, 62-3-21, as amended, which statute, so far as pertinent to this case, provides:
'Every person charged by presentment or indictment with a felony or misdemeanor, and remanded to a court of competent jurisdiction for trial, shall be forever discharged from prosecution for the offense, if there be three regular terms of such court, after the presentment is made or the indictment is found against him, without a trial, unless the failure to try him was caused by his insanity; or by the witnesses for the state being enticed or kept away, or prevented from attending by sickness or inevitable accident; or by a continuance granted on the motion of the accused; or by reason of his escaping from jail, or failing to appear according to his recognizance, or of the inability of the jury to agree in their verdict; * * *.'
On May 31, 1968, a rule in prohibition was issued against the respondents and made returnable before the Court on September 4, 1968, at ten o'clock a.m., and, pursuant to the prayer of the prohibition petition, further proceedings in the trial court were suspended pending a decision by this Court. The case was continued thereafter from time to time until April 22 1969, on which date the case was submitted for decision upon the prohibition petition; upon an answer and a demurrer to the petition filed by and in behalf of the respondents, with accompanying exhibits filed with and made a part of the answer; upon a demurrer to the answer; upon a 'reply and replication' to the answer, together with exhibits filed with and made a part of the reply and replication; upon a writing filed by and in behalf of the relator which is designated as 'petitioner's motion for writ of prohibition notwithstanding the answer of respondents'; and upon briefs in writing and oral argument of counsel.
Code, 1931, 51--2--1k, as amended, provides that three regular terms shall be held each year for the Circuit Court of Summers County, to commence, respectively, on the second Tuesday of January, the third Tuesday in May and the second Tuesday in September. The first indictment upon the charge of murder was returned at the September, 1966, regular term. We are not directly concerned in this case with that term of court for the reason that, at that term, the case was continued on the motion of the relator to the regular January, 1967, term of court and meantime he was released on bond. An accused is not entitled to count, under the statute, 'any term at which he procured a continuance * * * on his own motion, or otherwise prevented a trial thereof.' State v. McIntosh, 82 W.Va. 483, pt. 4 syl., 96 S.E. 79. In any event, the 'term at which the indictment is returned is not to be counted in favor of the discharge of a defendant.' State ex rel. Smith v. DeBerry, 146 W.Va. 534, pt. 1 syl., 120 S.E.2d 504.
The case was set for trial on January 19, 1967, during the regular term of the circuit court. On January 7, 1967, the first day of the term, the relator, by counsel, filed numerous motions and pleadings including a demurrer, a motion to quash the indictment, a plea in abatement and a 'Plea in Bar of Prosecution and Motion to Discharge Defendant from Prosecution,' copies of all of which motions and pleadings were filed by court orders, copies of which orders are filed as exhibits with and made a part of the answer to the prohibition petition. On January 10, 1967, during the regular January term, the trial court entered an order which contains the following language:
'And the defendant shall go hence without day.'
The indictment having been held void at the instance of the relator and he having been permitted, therefore, to 'go hence without day,' it is obvious that he was not at that stage remanded for trial upon a presentment or an indictment. There was no pending presentment or indictment upon which he could have been tried. According to an exhibit filed with the reply and replication to the respondents' answer, a new warrant for the relator upon the same charge of murder was obtained and, at a preliminary hearing held by a justice of the peace on January 13, 1967, the relator was held on such murder charge for the action of the next grand jury of Summers County. By an order entered by the trial court on January 20, 1967, upon a petition filed in behalf of the relator, he was permitted to be released on bond in the penalty of $2,000 conditioned upon 'his appearance on the first day of the next regular May 1967, term of this Court and not depart thence without leave of the Court.' He was not at that stage remanded to a court of competent jurisdiction 'for trial,' within the meaning of the 'three term' statute here in question. He was merely released under bond to await the action of a subsequent grand jury.
At the regular May, 1967, term of the circuit court, a new indictment, the second indictment, was returned against the relator alleging the same charge of murder which had been alleged in the initial indictment which, at the instance of the relator by counsel, the court had held to be void. During that regular term of court, on June 2, 1967, the relator, by counsel, filed, in relation to the second indictment, numerous motions and pleadings, including a motion to quash the indictment, a plea in abatement, a plea in bar and a demurrer.
In the relator's reply and replication he alleges: '* * * Petitioner's attack on the indictment in May 1967, was based primarily on the fact that the Jury Commissioners had intentionally excluded women from the Grand Jury, and the Court dismissed the May 1967 indictment for that reason.' In any event, it is obvious that, at the instance of the relator, the trial court was urged to hold that the indictment returned at the May, 1967, regular term was not a valid indictment upon which he could be legally tried.
An order entered by the Circuit Court of Summers County on January 29, 1968, recites the appearance of the state by its prosecuting attorney, the appearance of David Hale Farley, the relator in the present case, 'and it appearing to the Court that the Court has not had an opportunity to pass on the Pleading heretofore filed in this case' and that 'it is the order of the Court that the hearing of the matters in this case is continued at the direction of the Court.' The accused, the relator in this prohibition proceeding, was thereupon released on a bond 'to appear at the next regular May 1968, term' of the court. The answer of the respondents alleges that the case had been set for trial on ...
To continue reading
Request your trial