State ex rel. Matko v. Ziegler, 13052

• Decision Date: 16 March 1971
• Docket Number: No. 13052,13052
• Citation: 154 W.Va. 872,179 S.E.2d 735
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Edmund J. MATKO v. The Honorable Robert B. ZIEGLER, Judge of the Criminal Court of Harrison County, and William G. Johnson.

Page 735

179 S.E.2d 735

154 W.Va. 872

STATE ex rel. Edmund J. MATKO v. The Honorable Robert B. ZIEGLER, Judge of the Criminal Court of Harrison County, and William G. Johnson.

No. 13052.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 16, 1971.

Decided March 16, 1971.

Syllabus by the Court

1. A grand juror can not for any reason be interrogated as to his action as a grand juror.

2. 'Generally grand jurors cannot be required or permitted to divulge what occurred during an investigation of matters properly committed to them.' Point 1, syllabus, State v. Rice, 83 W.Va. 409 (98 S.E. 432).

3. Sound public policy forbids grand jurors to impeach their indictment by their own testimony.

4. Under Section 6, Article 7, Chapter 7, Code, 1931, as amended, a special judge of a criminal court of a county, in which proceedings are pending relating to the indictment and prosecution of the prosecuting attorney of the county, is authorized to disqualify the prosecuting attorney from acting in such matters and to appoint a special prosecuting attorney to act in the place and stead of the prosecuting attorney in the matters in which he is disqualified from acting.

5. A duly appointed special prosecuting attorney to act in matters in which the prosecuting attorney is disqualified from acting may, in the place and stead of the prosecuting attorney, sign and endorse an indictment against him and appear before the grand jury in connection with the indictment and the prosecution of the prosecuting attorney for the offense charged against him; and such action by the special prosecuting attorney does not vitiate the indictment.

Stanley E. Preiser, Chester Lovett, Leo Catsonis, Charleston, for relator.

Robert B. Ziegler, Judge of the Criminal Court of Harrison County, William G. Johnson, Special Pros. Atty., Harrison County, Clarksburg, for respondents.

HAYMOND, Judge.

This is an original prohibition proceeding instituted in this Court in January, 1971. The petitioner Edmund J. Matko, the duly elected prosecuting attorney of Harrison County, seeks a writ to prohibit the defendants, the Honorable Robert B. Ziegler, Judge of the Criminal Court of Harrison County, West Virginia, and William G. Johnson, presently acting as special prosecuting attorney in the case of State of West Virginia v. Matko, pending in that court, from further proceeding in that case against the petitioner upon an alleged void indictment for a felony returned by the grand jury of Harrison County on November 23, 1970 and to suspend all proceedings in that case until the final decision in this proceeding.

Upon the petition and its exhibits, this Court issued a rule returnable February 16, 1971, at which time this proceeding was submitted for decision upon the petition and its exhibits, the demurrer and the answer of the defendant William G. Johnson and its exhibits, the answer of the defendant Robert B. Ziegler, Judge of the Criminal Court of Harrison County, the motion of the defendant Johnson that this Court disqualify the Honorable Chauncey Browning, Judge of this Court, from considering the matters arising in this proceeding, and upon the typewritten briefs and the oral arguments of the attorneys in behalf of the petitioner and of the defendant Johnson who appeared in his own behalf.

A preliminary question is presented by the motion of the defendant Johnson that this Court disqualify Judge Browning from participating in the consideration or the decision of this case on the ground that his son, the Honorable Chauncey Browning, Jr., attorney general of this State, is interested in the decision of this proceeding because of his action in ordering the prosecuting attorney of Kanawha County to act as the prosecuting attorney of Harrison County during the period of the disqualification of the petitioner to perform the duties of that office. A majority of this Court, Judge Browning not participating, denies that motion for the reason that the question whether Judge Browning should participate in the consideration or the decision of this proceeding should be decided by him and not by this Court. This action is taken to enable Judge Browning to determine whether he will or will not participate in the decision of the other questions involved in this proceeding.

When the regular November 1970 term of the Criminal Court of Harrison County convened on November 10, 1970, a vacancy existed in the office of judge of that court, due to the prior resignation of its regular judge, the Honorable Arlos J. Harbert, and because the newly elected regular judge did not occupy that office until January 1971. On November 10 the Honorable Sam J. Kyle, Jr. was elected as special judge of that court. Nine of the sixteen grand jurors who on October 16, 1970 had been notified to attend did not appear, and after the organization of the grand jury by the selection of the necessary number of qualified persons to constitute the requisite number of sixteen grand jurors, the special judge charged the grand jury and sent it to its room for its deliberations.

On November 12, 1970, after the grand jury had returned several indictments, the foreman of the grand jury informed the special judge that some members of the grand jury desired to investigate other matters, and one grand juror, in the presence of the petitioner, stated that the matters in question related to bribery concerning the petitioner. The court adjourned the grand jury until the afternoon session and at that time instructed it to go to its room to discuss the matters and to ascertain how many jurors desired to investigate the matters. After the grand jury reported that eight of its members wanted to investigate and eight did not want to investigate the charges against the petitioner, the court advised the jury that it could investigate the matters and in the presence of the grand jury informed the petitioner that he would appoint a special prosecuting attorney to conduct the investigation as the court was of the opinion that the petitioner and his assistants were disqualified from acting in the matters. The court then excused the grand jury until November 18.

On November 16, 1970, it appearing to the special judge of the Criminal Court of Harrison County that the prosecuting attorney and his assistants would be unable to act and that it would be improper for him or them to act in matters to come before the grand jury as then convened, by order of that date the court appointed the defendant William G. Johnson as special prosecuting attorney 'to act in the prosecution of certain evidence before said grand jury and if indictments are returned to prosecute thereon.' On the following day, November 17, 1970, the defendant William G. Johnson, took the oath prescribed by law as special prosecuting attorney.

The grand jury reconvened on November 18, 1970, and on November 23 returned the foregoing indictment against the petitioner. Before the adjournment of the grand jury, the petitioner on November 23, 1970, filed his petition in which he prayed that the grand jury be discharged and dismissed; that the court investigate and interrogate the members of the grand jury as to any corruption or violations of law that occurred in the work of the grand jury pertaining to the petitioner; that a new or special grand jury be impanelled to investigate the matters; that the special prosecuting attorney be discharged and the order appointing him rescinded; that he be enjoined from signing or permitting the return of any indictment, and that the grand jury be enjoined from returning any future indictments; that, if the grand jury were not discharged, it should subpoena any witnesses it may desire to hear before making any report; and that the petitioner be permitted to appear before the grand jury and give such testimony as he might desire. Before the grand jury was discharged the grand jurors informed the court that they were unwilling to hear any testimony by the petitioner, and by order of that date the court refused to grant the prayer of the petitioner but on his motion admitted him to bail in the penalty of $1,000.

Also on November 23, 1970, the court denied a motion of Patrick Casey, prosecuting attorney of Kanawha County, that he be designated to discharge the duties of the petitioner as special prosecuting attorney of Harrison County in the matters in which the petitioner might be disqualified from acting, as required and ordered by the attorney general of this State by written instrument filed in the Criminal Court of Harrison County.

In support of his petition for a writ of prohibition the petitioner assigns these principal grounds:

1. The indictment of the petitioner for a felony returned by the grand jury on November 23, 1970 is a void indictment because only eleven of the sixteen members of the grand jury voted for or concurred in the finding of the indictment as indicated by the affidavits of five members of the grand jury that they did not vote for or concur in such finding.

2. The action of the special judge of the criminal court in disqualifying the petitioner from acting in connection with the indictment and prosecution of the petitioner was unauthorized and invalid because taken without notice to the petitioner and an opportunity for him to be heard and constituted an ineffective attempt to remove the petitioner from office which could be done under Section 7, Article 6, Chapter 6, Code, 1931, but not under Section 6, Article 7, Chapter 7, Code, 1931, as amended.

3. The special judge of the criminal court of Harrison County was without authority to appoint the defendant Johnson special prosecuting attorney in the place of the petitioner to act in his stead with respect to the indictment against the petitioner and the prosecution of the petitioner for the crime charged in the indictment.

Article III, Section 4 of the Constitution of West Virginia provides that no person shall be held to answer for...