State ex rel. McCormick v. Hall

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

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.

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 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 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, 78 W.Va. 214, 88 S.E. 787, Annotation II, 102 A.L.R. 299. In State 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 criminal offense. In the opinion this Court used this language: 'In all cases, when the inferior court has not jurisdiction of the subject matter in controversy, the writ will lie. This is the very language of the statute, and is but declaratory of the common law. Now what is the rule for determining jurisdiction? Does this warrant charge an offense? If it does, then the criminal court will have jurisdiction to try all matters of law and fact arising therein, unless it should exceed its legitimate powers while doing so. If there is no offense charged, then there is no jurisdiction. But it is argued that the criminal court should first determine whether an offens is charged, and whether it will assume jurisdiction, and, if perchance the court should take jurisdiction, refuse to discharge Constanzo, try the case, and find him guilty, then a writ of error would lie, and that procedure would be the proper course, instead of invoking the extraordinary remedy of prohibition. The answer to this is that prohibition is a writ of right, and Constanzo may elect to pursue it rather than invoke some other remedy. By the writ he is given a quick and efficacious remedy, and if the court does not have jurisdiction, he is saved the costs and delays incidental to a jury trial * * *. Whenever it appears that a court is proceeding in a cause without jurisdiction, prohibition will issue, regardless of the existence of other remedies. Jennings v. McDougle, 83 W.Va. [186,] 187 ; Hatfield v. Graham, 73 W.Va. 759 ; Weil v. Black, 76 W.Va. 685 ; State [ex rel. Porter] v. Studebaker, 80 W.Va. 673, . Where the inferior court has not jurisdiction, it may be prohibited from proceeding, though the record does not disclose that the party praying for the petition in any manner asked the inferior court to dismiss the proceeding. Swinburn v. Smith, 15 W.Va. 483; Marsh v. O'Brien, 82 W.Va. 508, .' In Workman v. Shaffer, 112 W.Va. 338, 164 S.E. 299, this Court held in the syllabus that 'When no offense is charged in the warrant of a justice, he is without jurisdiction to try the accused and prohibition will issue.' In the opinion this Court said 'If there is no offense charged, then there is no jurisdiction.' In Annotation II, 102 A.L.R. 299, the annotator states that when a defect in an indictment is such as to deprive the court of jurisdiction, prohibition is generally held to be an available remedy.

It is well settled that 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...

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11 cases
  • State v. Lewis, 20930
    • United States
    • Supreme Court of West Virginia
    • 6 Julio 1992
    ...fails 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. ......
  • State ex rel. Farley v. Kramer, 12745
    • United States
    • Supreme Court of West Virginia
    • 24 Julio 1969
    ...applied that 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 520. We are of the opinion that the question presented for decision in this case is one of first impression for this C......
  • State ex rel. Turner v. McClure, 12914
    • United States
    • Supreme Court of West Virginia
    • 26 Marzo 1970
    ...so indicted, (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 or accusation.' Code, 1931......
  • State ex rel. Carson v. Wood, s. 12935
    • United States
    • Supreme Court of West Virginia
    • 17 Julio 1970
    ...the subject 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 520). 2. If an indictment fails to charge a petitioner with a crime and, for that reason, is a void indictment, the ......
  • Request a trial to view additional results

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