State ex rel. McCormick v. Hall, No. 12533

CourtSupreme Court of West Virginia
Writing for the CourtHAYMOND
Citation150 W.Va. 385,146 S.E.2d 520
PartiesSTATE ex rel. David McCORMICK v. K. K. HALL, Judge of the Circuit Court of Lincoln County, et al.
Decision Date01 February 1966
Docket NumberNo. 12533

Page 520

146 S.E.2d 520
150 W.Va. 385
STATE ex rel. David McCORMICK
v.
K. K. HALL, Judge of the Circuit Court of Lincoln County, et al.
No. 12533.
Supreme Court of Appeals of West Virginia.
Submitted Jan. 12, 1966.
Decided Feb. 1, 1966.

Syllabus by the Court.

1. Under Section 1, Article 1, Chapter 53, Code, 1931, the writ of prohibition lies as a matter of right in all cases of usurpation and abuse of power when the inferior court does not have jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.

[150 W.Va. 386] 2. An indictment of a defendant for the offense of an assault with intent to maim, disfigure, disable and kill a person which in the charging part of such indictment through mistake or inadvertence designates the victim instead of the defendant as the perpetrator of the assault is fatally and incurably defective and for that reason is null and void; and, as the court to which a void indictment is returned does not have jurisdiction to try a person so indicted, prosecution of a defendant upon

Page 521

such void indictment will be prevented by a writ of prohibition.

W. Dale Greene, L. Alvin Hunt, Charleston, for relator.

C. Donald Robertson, Atty. Gen., Leo Catsonis, Asst. Atty. Gen., Charleston, for respondents.

HAYMOND, Judge:

This is an original proceeding in prohibition instituted in this Court November 23, 1965, in which the petitioner, David McCormick, seeks a writ to prevent the defendants, Honorable K. K. Hall, Judge of the Circuit Court of Lincoln County, and Honorable R. A. Woodall, Prosecuting Attorney of Lincoln County, West Virginia, from proceeding with the prosecution of the petitioner upon an indictment for a felony returned by the grand jury of the Circuit Court of Lincoln County, November 8, 1965, which proceeding, after the circuit court had overruled the motions of the petitioner to dismiss or quash such indictment, was set for trial on December 1, 1965.

Upon the petition, with which a copy of the indictment was filed as an exhibit, this Court issued a rule returnable before this Court on January 12, 1966, to show cause why a writ should not be awarded as prayed for by the petitioner, and ordered that all proceedings sought to be prohibited be suspended until the final determination by this Court of the questions involved in this proceeding.

On the return day of the rule the defendants appeared and filed their answer to the petition and this proceeding [150 W.Va. 387] was submitted for decision upon the petition and its exhibits, the answer, and the written briefs of the attorneys in behalf of the respective parties.

The indictment, the sufficiency of which is assailed in this proceeding, excluding the caption, the name of the appearing witness and the signature of the prosecuting attorney, is in this form:

'The Grand Jurors of the State of West Virginia, in and for the body of the County of Lincoln, and now attending said Court, upon their oaths present: That David McCormick on the 22nd day of October, 1965, in the said County of Lincoln in and upon one Raymond Earl Hensley assault did make, and he the said Raymond Earl Hensley did than and there unlawfully, maliciously and feloniously shoot, cut, stab and would with intent then and there to maim, disfigure, disable and kill him the said Raymond Earl Hensley against the peace and dignity of the State.'

The petitioner contends that the indictment fails to charge any crime against him that is cognizable under the laws of this State and that, as the indictment is void for that reason, prohibition lies to prevent the prosecution of the petition upon such indictment.

On the contrary the defendants assert that though the use of the pronoun 'he' instead of the pronoun 'him' is an irregularity, it is merely a grammatical irregularity which does not alter the substance of the allegations of the indictment, or mislead, confuse or prejudice the petitioner, and does not vitiate or render the indictment null and void.

If the indictment fails to charge the petitioner with a crime and, for that reason, is a void indictment the circuit court is without jurisdiction to try the petitioner upon such indictment and prohibition is the proper remedy to prevent the prosecution of the petitioner upon such void indictment. State ex rel. Workman v. Anderson, 89 W.Va. 1, 109 S.E. 782. See also State v. General Daniel Morgan Post No. 548, 144 W.Va. 137, 107 S.E.2d 353; Workman v. Shaffer, 112 W.Va. 338, 164 S.E. 299; State ex rel. Constanzo v. Kindelberger, 88 W.Va. 131, 106 S.E. 434; State v. Emsweller, [150 W.Va. 388] 78 W.Va. 214, 88 S.E. 787, Annotation II, 102 A.L.R. 299. In State

Page 522

ex rel. Constanzo v. Kindelberger, 88 W.Va. 131, 106 S.E. 434, this Court granted a writ of prohibition to prevent the Criminal Court of Ohio County, to which an appeal from a justice had been granted, from trying the accused upon a warrant which did not charge him with a...

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11 practice notes
  • State v. Lewis, No. 20930
    • United States
    • Supreme Court of West Virginia
    • July 6, 1992
    ...to charge a crime. See, e.g., State ex rel. Gillespie v. Wood, 154 W.Va. 422, 175 S.E.2d 497 (1970); State ex rel. McCormick v. Hall, 150 W.Va. 385, 146 S.E.2d 520 (1966), overruled on other grounds, State v. Furner, 161 W.Va. 680, 245 S.E.2d 618 (1978); Workman v. Shaffer, 112 W.Va. 338, 1......
  • State ex rel. Farley v. Kramer, No. 12745
    • United States
    • Supreme Court of West Virginia
    • July 24, 1969
    ...statute. It is not denied that prohibition is a proper proceeding in the circumstances of this case. State ex rel. McCormick v. Hall, 150 W.Va. 385, 146 S.E.2d We are of the opinion that the question presented for decision in this case is one of first impression for this Court, notwithstand......
  • State ex rel. Carson v. Wood, Nos. 12935
    • United States
    • Supreme Court of West Virginia
    • July 17, 1970
    ...matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.' Syllabus, Point 1, State ex rel. McCormick v. Hall, 150 W.Va. 385 (146 S.E.2d 2. If an indictment fails to charge a petitioner with a crime and, for that reason, is a void indictment, the court is without j......
  • State ex rel. Turner v. McClure, No. 12914
    • United States
    • Supreme Court of West Virginia
    • March 26, 1970
    ...(and) prosecution of a defendant upon such void indictment will be prevented by a writ of prohibition.' State ex rel. McCormick v. Hall, 150 W.Va. 385, pt. 2 syl., 146 S.E.2d 'All allegations, unnecessary to be proved, may be omitted in any indictment Page 170 or accusation.' Code, 1931, 62......
  • Request a trial to view additional results
11 cases
  • State v. Lewis, No. 20930
    • United States
    • Supreme Court of West Virginia
    • July 6, 1992
    ...to charge a crime. See, e.g., State ex rel. Gillespie v. Wood, 154 W.Va. 422, 175 S.E.2d 497 (1970); State ex rel. McCormick v. Hall, 150 W.Va. 385, 146 S.E.2d 520 (1966), overruled on other grounds, State v. Furner, 161 W.Va. 680, 245 S.E.2d 618 (1978); Workman v. Shaffer, 112 W.Va. 338, 1......
  • State ex rel. Farley v. Kramer, No. 12745
    • United States
    • Supreme Court of West Virginia
    • July 24, 1969
    ...statute. It is not denied that prohibition is a proper proceeding in the circumstances of this case. State ex rel. McCormick v. Hall, 150 W.Va. 385, 146 S.E.2d We are of the opinion that the question presented for decision in this case is one of first impression for this Court, notwithstand......
  • State ex rel. Carson v. Wood, Nos. 12935
    • United States
    • Supreme Court of West Virginia
    • July 17, 1970
    ...matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.' Syllabus, Point 1, State ex rel. McCormick v. Hall, 150 W.Va. 385 (146 S.E.2d 2. If an indictment fails to charge a petitioner with a crime and, for that reason, is a void indictment, the court is without j......
  • State ex rel. Turner v. McClure, No. 12914
    • United States
    • Supreme Court of West Virginia
    • March 26, 1970
    ...(and) prosecution of a defendant upon such void indictment will be prevented by a writ of prohibition.' State ex rel. McCormick v. Hall, 150 W.Va. 385, pt. 2 syl., 146 S.E.2d 'All allegations, unnecessary to be proved, may be omitted in any indictment Page 170 or accusation.' Code, 1931, 62......
  • Request a trial to view additional results

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