State Ex Rel. Mcninch v. Porter
| Decision Date | 17 April 1928 |
| Docket Number | (No. 6119.) |
| Citation | 143 S.E. 93 |
| Court | West Virginia Supreme Court |
| Parties | STATE ex rel. McNINCH . v. PORTER et al. |
(Syllabus by the Court.)
Error to Circuit Court, Marshall County.
Proceeding by the State, on the relation of P. A. McNinch, Sheriff of Marshall County, against A. A. Porter and others, for contempt. Judgment finding the named defendant guilty, and he brings error. Judgment reversed and complaint dismissed.
Chauncey D. Hinerman, of Cameron, and D. B. Evans, of Moundsville, for plaintiff in error.
Martin Brown, of Moundsville, and McCam-ic & Clarke, of Wheeling, for defendant in error.
MILLER P. F. A. McNinch, sheriff of Marshall county, prosecuted the present proceeding for contempt in the circuit court of said county, against A. A. Porter, T. C. Pipes, and Wylie McCardle, for resisting and interfering with Deputy Sheriff Benton Hazlett in the service of a writ of possession, the complaint charging that "the action of the said A. A. Porter in swearing out a warrant against the deputy Benton Hazlett through the office of said T. C. Pipes, justice of the peace, and placing the same in the hands of Constable McCardle, was a contempt of the court under section 27, of chapter 147, of the Code of West Virginia, in this, to wit, disobedience and resistance of an officer of the court to a lawful process, judgment, decree or order of this court, and was for the purpose of deterring and intimidating the officers of the court to keep them from executing the due process of the court;" and further "that he is informed and believes from all the facts and circumstances in the case, and therefore charges the fact to be, that the said A. A. Porter conferred with the said T. C. Pipes, justice of the peace as aforesaid, and Wylie McCardle, constable as aforesaid, all of whom entered into a conspiracy for the purpose of obstructing, hindering and delaying the officers of the circuit court of Marshall county, West Virginia, from executing the said lawful process of said court, and that the said A. A. Porter, by loud, boisterous and threatening language previous to the swearing out of the said complaint before said justice, attempted to provoke a breach of the peace with the said Benton Haz-lett, who is a qualified deputy sheriff of said Marshall county, in the state of West Virginia." The complaint alleges that Hazlett committed no violation of the laws of the state, and did nothing on which to base the said complaint made before the justice. The warrant was for the arrest of Hazlett for an alleged assault on Porter.
On a summary trial before the circuit court, the justice and constable were dismissed from the proceeding for want of evidence against them, but Porter was found guilty of the charge of contempt, and was fined $50.00.
From the evidence adduced before the circuit court it appears that on the day before the act charged in the complaint in the contempt proceeding, Deputy Sheriff Parks, in company with counsel for Mrs. Elizabeth McConaughey, with a writ of possession issued out of the circuit court of Marshall county to put Mrs. McConaughey in possession or property recovered by her in an action of ejectment, served copies of the writ on the tenants in possession of the property. The officer and the lawyer also presented to these tenants to be signed by them what are denominated "attornment papers, " acknowledging the ownership of Mrs. McConaughey and their tenancy under her. Porter and some of the other tenants refused to sign the papers at the time. The next day Deputy Sheriffs Parks and Hazlett returned and again asked the tenants to sign the papers, and indicated that they would have to put them and their property out of the building if they did not sign. During the argument that ensued, Porter claims that Hazlett assaulted him. From the evidence of what took place at the time, it would appear that probable cause existed justifying Porter in swearing out the warrant for assault. A number of witnesses testified that Hazlett struck Porter, and no one says that Porter struck the officer. All the tenants, however, including Porter, signed the papers, with the exception of one Stephens, who signified his willingness to do so if he could have a copy of the same. He and the officers went to a bank nearby to have a copy made. In the meantime Porter went to the office of the justice of the peace, T. C. Pipes, and swore out a warrant for the arrest of Hazlett. The warrant was placed in the hands of Constable McCardle, who, upon inquiry, learned that Hazlett was at the bank. The constable went there, presented the warrant to Hazlett, and accepted a cash bond of ten dollars for his appearance when called for. Stephens signed the attornment when the copy was made for him. It does not appear that Porter...
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Hendershot v. Handlan
...court in his official character, . . . expressly excludes proceeding summarily in all other cases." Earlier, in State ex rel. McNinch v. Porter, 105 W.Va. 441, 143 S.E. 93 (1928), and State v. McClaugherty, 33 W.Va. 250, 10 S.E. 407 (1889), the Court held that this statute was not an uncons......
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Hendershot v. Hendershot
...v. Conley, 151 W.Va. 584, 588, 153 S.E.2d 681, 684 (1966), we stated: "In State ex rel. McNinch v. Porter, 105 W.Va. 441, pt. 2 syl., 143 S.E. 93, it was held that, notwithstanding the common law right of courts to punish for contempt, a circuit court may not proceed and punish summarily fo......
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State ex rel. Arnold v. Conley
...thereto as to obstruct or interrupt the administration of justice; * * *.' In State ex rel. McNinch v. Porter, 105 W.Va. 441, pt. 2 syl., 143 S.E. 93, it was held that, notwithstanding the common law right of courts to punish for contempt, a circuit court may not proceed and punish summaril......
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State v. Boyd
...ex rel. Arnold v. Conley, 151 W.Va. 584, 588, 153 S.E.2d 681, 684 (1966): "In State ex rel. McNinch v. Porter, 105 W.Va. 441, pt. 2 syl., 143 S.E. 93, it was held that, notwithstanding the common law right of courts to punish for contempt, a circuit court may not proceed and punish summaril......