State Ex Rel. Lafe Chafin v. Bailey

• Decision Date: 11 September 1928
• Docket Number: (No. 6354)
• Parties: State ex rel. Lafe Chafin, Prosecuting Attorney v. Honorable R. D. Bailey, Judge
• Court: West Virginia Supreme Court

106 W.Va. 32

State ex rel. Lafe Chafin, Prosecuting Attorney

v.Honorable R. D. Bailey, Judge

(No. 6354)

Supreme Court of Appeals of West Virginia.

Submitted September 5, 1928.

Decided September 11, 1928.

Criminal Law Mandamus Death Sentence Must Be Pronounced on Verdict of Guilty of Murder, First Degree, Not Fixing Punishment as Life Imprisonment; After Death Sentence For Murder, First Degree, Is Affirmed on Writ of Error, and Case Remanded, With Directions, Trial Court Cannot Change Sentence; Mandamus Will Issue to Compel Trial Court to Take Action to Carry Out Death Sentence Originally Pronounced and Affirmed (Code, c. 144, § 2; c. 159, § 19).

Where the jury in a murder trial returns a verdict of guilty of murder in the first degree, without further finding that the convict shall be confined in the penitentiary for life, the only sentence which can be pronounced is that of death, as prescribed by law. And where such sentence has been duly and properly pronounced by the trial court, and upon writ of error to the appellate court is affirmed, and the case is remanded to the trial court with directions to take proper action to carry its judgment so pronounced into effect, the

trial court cannot change its former sentence and impose on

the prisoner other than the death penalty; and mandamus

will issue to compel him to take proper action to carry out

the sentence as originally pronounced and affirmed.

(Criminal Law, 16 C. J. § 3075; 17 C. J. § 3767; Homicide, 30 C. J. § 725.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Original proceeding in mandamus by the State, on the relation of Lafe Chafin, Prosecuting Attorney, against Hon. R D. Bailey, Judge, to compel said judge to pronounce sentence of death on Clyde Beale, convicted of murder in first degree.

Writ awarded.

H. B. Lee, Attorney General, B. A. Blessing and W. Elliott Nefflen, Assistant Attorneys General, and Lafe Chafin, Prosecuting Attorney, for relator.

R. D. Bailey, pro se.

Lively, President:

The State, at the relation of Lafe Chafin, Prosecuting Attorney, seeks to compel Honorable R. D. Bailey, Judge of the circuit court of Mingo county, by the peremptory writ of mandamus to pronounce sentence of death upon Clyde Beale found guilty of murder in the first degree without recommendation by a jury of that county.

The material facts set out in the petition for basis of the writ are substantially as follows: Beale was legally indicted, tried and convicted of murder in the circuit court of Mingo county, the verdict being, "We, the jury, agree and find the defendant Clyde Beale, guilty of murder in the first degree as charged in the within indictment. D. Sisson, Foreman". This verdict was returned on July 24, 1926, whereupon, on July 28, 1926, the court pronounced a sentence of death on the prisoner as prescribed by law and fixed the 7th day of September, 1926, for its execution by the warden, of the penitentiary. A writ of error was awarded by the Supreme Court and the judgment and sentence affirmed by that Court on November 22, 1927, and inasmuch as the time for execution of the sentence had expired the case was remanded to the circuit court of Mingo county with directions to take proper action to carry its judgment into effect. After the mandate of the Supreme Court had been received by the circuit court, the judge thereof, instead of fixing another date for the execution of Beale, on July 18, 1928, pronounced another sentence which directed that the prisoner be confined in the State Penitentiary for life. It is asserted by the state at the relation of the prosecuting attorney that the circuit court had no power or jurisdiction to pronounce a sentence of life imprisonment, and that the only sentence which the judge had jurisdiction or power to impose was the sentence of death originally pronounced by him after the coming in of the verdict, and fixing a new date for the execution, which is a mere ministerial act. And the prayer is that respondent be directed and commanded to set aside, vacate and annul the sentence pronounced by him on July 18, 1928, and to further direct and command said respondent to carry out the former judgment and the mandate of the appellate court.

The material facts of the petition are not controverted by the return to, and motion to quash, the alternative writ. The return admits the imposition of the death penalty on July 28, 1926, and which directed that the prisoner should be hanged, and that on the 18th of July, 1928, the prisoner was sentenced to confinement in the penitentiary for life, in lieu of fixing a date upon which he should be hanged. And the return says that it was not necessary for him to again impose the death sentence as that had. already been done on July 28, 1926. The reasons assigned by respondent for refusing to carry out the sentence of the...