State ex rel. Mynes v. Kessel, No. 12671

• Court: Supreme Court of West Virginia
• Writing for the Court: HAYMOND
• Citation: 152 W.Va. 37,158 S.E.2d 896
• Docket Number: No. 12671
• Decision Date: 23 January 1968
• Parties: STATE of West Virginia ex rel. Chester Clay MYNES v. Honorable Oliver D. KESSEL, Judge of the Circuit Court of Roane County, WestVirginia et al.

Page 896

158 S.E.2d 896 152 W.Va. 37 STATE of West Virginia ex rel. Chester Clay MYNES
v.
Honorable Oliver D. KESSEL, Judge of the Circuit Court of
Roane County, WestVirginia et al. No. 12671. Supreme Court of Appeals of West Virginia. Submitted Sept. 20, 1967.
Decided Jan. 23, 1968.

Page 897

Syllabus by the Court

1. 'The general purpose of the statutes relating to the drawing of grand juries is to expedite and not to hamper the administration of justice--hence they are directory rather than mandatory. While courts should use meticulous care to follow the statute, a technical departure from the mode of procedure by the court in such drawing, where the prisoner has not been shown to have been prejudiced thereby, will not be ground for reversal.' Point 2, syllabus, State v. Muncey, 102 W.Va. 462 (135 S.E. 594).

2. The provision of Section 2, Article 2, Chapter 52, Code, 1931, as amended, that persons selected and drawn for grand juries shall be chosen from the respective magisterial districts as nearly as may be in proportion to the population of such districts, and the provisions of such section that at the time the list of persons for grand jury service is made up, the jury commissioners shall cause all the names thereon to be written, each on a separate ballot, and shall fold, roll or prepare the same so as to resemble each other as nearly as may be, and so that the names written thereon shall not be visible on the outside, and shall inclose the ballots for each magisterial district in a separate envelope indorsed with the name of the magisterial district and the number of ballots inclosed, and shall deposit all the ballots, with the list, in a secure box to be prepared for the purpose, which shall be delivered to and kept safely by the clerk of the circuit court, and shall be known as the 'grand jury box' and shall be opened only by the jury commissioners or by order of the judge of the court having control thereof, most of which provisions deal with and prescribe the procedure to be followed in the use of such list and [152 W.Va. 38] ballots, are directory; and a grand jury drawn from such list and in the selection of which the foregoing provisions are substantially complied with, is a lawful grand jury and an indictment by such grand jury is not vitiated or rendered void because there has not been

Page 898

strict compliance with such directory provisions, if the members of such grand jury are qualified for gradn jury service and no fraud or corruption has occurred in and no prejudice to any right of the defendant has resulted from the manner in which such grand jury was selected and impaneled.

3. The only, qualifications of grand jurors, as set forth in the statute, are that they shall be persons of good moral character, who have never been convicted of a felony or of any scandalous offense, and shall have been bona fide citizens of the State and county for at least one year immediately preceding the preparation of the list, and shall not be officeholders under the laws of the United States or of this State.

4. Courts of record can speak only by their record and what does not so appear does not exist in law.

George M. Scott, Spencer, for relator.

C. Donald Robertson, Atty. Gen., Leo Catsonis, Asst. Atty. Gen., Charleston, Orton A. Jones, Pros. Atty., Spencer, for respondents.

HAYMOND, Judge.

This is an original proceeding in prohibition, instituted in this Court June 12, 1967. The petitioenr is Chester Clay Mynes and the defendants are Honorable Oliver D. Kessel, Judge of the Circuit Court of Roane County, West Virginia, and Honorable Orton A. Jones, Prosecuting Attorney of that county. The petitioner seeks a writ to prohibit the defendants from trying the petitioner upon an indictment returned by the grand jury attending the Circuit Court of Roane County on May 23, 1967, which charges the petitioner with the offense of statutory rape and which indictment the petitioner asserts is void because the grand jury which [152 W.Va. 39] returned it was not selected and impaneled in the manner provided by law and because at the time the petitioner filed his original and amended plea in abatement to the indictment no order showing the finding of the indictment and its return in court had been entered upon the records of the court.

To the indictment the petitioner filed his plea in abatement on May 31, 19367 and his amended plea in abatement on June 5, 1967, at which time issue was joined upon the amended plea in abatement. The matter was heard by the court upon the written stipulation of facts between the prosecuting attorney and the attorney for the petitioner, the evidence of the jury commissioners and the clerk of the circuit court, given under oath in open court, and an affidavit of the deputy clerk of the circuit court. By order entered June 5, 1967, the court overruled the plea in abatement and on that day the petitioner entered his plea of not guilty to the indictment and moved the court that all proceedings be stayed for a sufficient time to enable the court reporter to transcribe the evidence taken upon the hearing upon his amended plea in abatement. By order entered June 5, 1967, the court overruled the foregoing motions, and set the case for trial on June 14, 1967.

On June 12, 1967, upon the petition and its exhibits filed by the petitioner, this Court granted a rule returnable September 6, 1967, and suspended further proceedings in the case until the further order of this Court. On September 5, 1967, the defendants filed their written demurrer and answer and its exhibits; and on the return day of the rule this proceeding was submitted for decision upon the foregoing pleadings, the record of the proceedings in the circuit court and the written briefs and the oral arguments of the attorneys for the petitioner and the defendants.

The defects, irregularities and statutory violations alleged in the amended plea in abatement filed in the criminal proceeding by the petitioner Mynes and which he charges render illegal the grand jury

Page 899

which returned the indictment against him and also invalidates such indictment are: (1) The jury commissioners did not select or prepare a list [152 W.Va. 40] of qualified persons of Roane County for grand jury service for the current year; (2) the grand jurors attending the Circuit Court of Roane County, who returned the indictment against the petitioner Mynes were not selected or chosen from any jury list or ballots prepared by jury commissioners of that court at the levy term 1967 of the county court of that county but that on the contrary approximately fifty of the 100 names placed on the grand jury list by the jury commissioners in 1967 were selected and chosen by them at the levy term of the county court for the year 1966; (3) the sixteen members of the grand jury were not chosen from the respective magisterial districts of Roane County as nearly as may be in proportion to the population of such districts; (4) no person from Harper District served as a member of the grand jury, only one person from Walton District served as a member, and nine of the sixteen members reside in Spencer District, all of which was in violation of the legal requirement that such jurors should be proportioned as nearly as may be among the respective districts of the county in accordance with the population of such districts; (5) only thirteen persons appeared as grand jurors at the May 1967 term of the Circuit Court of Roane County, one of such jurors from Walton District was excused because as a member of the board of education of that county he is a public officer and ineligible for such service, and the special jury commissioners, in selecting the four additional grand jurors, gave no consideration to the various magisterial districts but selected all of them from Spencer District of the county, and no record of the circuit court shows any valid appointment of jury commissioners to prepare the list and select the necessary number of persons to complete the grand jury for the May 1967 term of the circuit court; and (6) the jury commissioners did not, at the levy term of the county court for 1967, or at any time, cause all the names on the ground jury list to be placed upon a separate ballot, did not fold, roll or prepare such ballots so as to resemble each other as nearly as may be and so as not to be visible on the outside, did not inclose such ballots for each magisterial district in a separate envelope indorsed with the name of the magisterial[152 W.Va. 41] district and the number of ballots inclosed, and did not deposit all such ballots with the jury list in a secure box prepared for the purpose, known as the grand jury box, and did not deliver such box for safe keeping to the clerk of the Circuit Court of Roane County, but on the contrary all the names written on separate ballots and placed in envelopes in the grand jury box were written, folded and placed in such box by the deputy circuit clerk of Roane County when the jury commissioners were not present and did not participate in the preparation of the ballots or in placing them in the grand jury box. All of these irregularities, the petitioner charges, were contrary to and in violation of the statutes applicable to such matters and resulted in the selection of an illegal grand jury and rendered invalid the indictment returned by it against the petitioner.

The petitioner also charges, as a ground of attack upon the indictment, and as set forth in a written stipulation entered into by the attorneys representing the respective parties, that as of the date of the filing of the petitioner's plea in abatement there was no court order of record in the circuit court which showed that the grand jury of the May 1967 term of that court had been impaneled and sworn as such grand jury or that the indictment against him had been returned, received, accepted or filed in the circuit court.

The petitioner makes the...