State ex rel. Lykens v. Bouchelle

• Decision Date: 08 October 1940
• Docket Number: 9142.
• Citation: 11 S.E.2d 119,122 W.Va. 498
• Parties: STATE ex rel. LYKENS v. BOUCHELLE, Judge.
• Court: West Virginia Supreme Court

11 S.E.2d 119

122 W.Va. 498

STATE ex rel. LYKENS v. BOUCHELLE, Judge.

No. 9142.

Supreme Court of Appeals of West Virginia.

October 8, 1940

H. D. Rollins, of Charleston, for relator.

Mose E. Boiarsky, Sam Lopinsky, and John Charnock, all of Charleston, for respondent.

HATCHER Judge.

Relator plaintiff in a civil action for an alleged wrongful death seeks here by mandamus to have the circuit court compelled to permit the examination by her counsel of a copy, in possession of the court, of the record and report of officers who investigated the death.

The court acquired the copy in this manner. Plaintiff filed a verified petition stating that such a report, together with the signed written statements of "divers" persons who had valuable information relating to the manner of her decedent's death, were in possession of the superintendent of the department of public safety; that he had refused her counsel inspection thereof; that she desired to introduce the statements in evidence at the trial; and that it was necessary for her counsel to inspect the statements in advance to learn who signed them and their contents. Thereupon, the court, on September 13, 1940 entered an order requiring the superintendent to produce the report in court on September 21st for examination by counsel. In the interim, the court "communicated" with the superintendent, requesting his permission to examine the report, and was advised by him that he did not object to furnishing the court such records or data as the court might care for, and that a copy of the record in question had been filed with the prosecuting attorney which, if agreeable to him, the court could conveniently inspect. The court procured that copy, and after reading it, revoked, in effect, the order of September 13th, on the ground that permitting counsel to examine the copy would be against public policy. Before the revocation, petitioner tendered to the court an amendment to her petition, alleging that a certain class of the affiants worked for an employer who they said had advised them not to talk under penalty of discharge. The employer came before the court and, under oath, denied the advice and the threat.

The rule that statements of persons to public officers investigating a crime or a possible crime are privileged, is so well established that "its soundness cannot be questioned." Wigmore on Ev., 3d Ed., sec. 2374. It is equally well settled that the head of the department where the statements are reposed, will not ordinarily be required to disclose them by the courts when in his opinion the disclosure would be...