State Ex Rel. Oscar Cosner v. See
| Decision Date | 04 March 1947 |
| Docket Number | No. 9910,9910 |
| Parties | State ex rel. Oscar Cosner v. Ernest A. See, Judge of the Circuit Court of Mineral County, et al. |
| Court | West Virginia Supreme Court |
At common law, the right of an accused, in a criminal prosecution, to trial in, and by a jury of, the vicinage or the county in which the offense was alleged to have been committed, was a general, not an absolute or unconditional, right, and was subject to the right of removal of the proceeding to another jurisdiction, upon application of either the prosecution or the accused, when necessary to obtain a fair and impartial trial.
In passing upon the validity of a statute which is challenged as violative of the Constitution of this State, every reasonable construction will be resorted to by the court to sustain its constitutionality.
Section 20, Article 1, Chapter 52, Code, 1931, which provides that in any criminal case in any court, if in the opinion of the court, or the judge thereof in vacation, qualified jurors, not exempt from serving, can not be conveniently found in the county in which the trial is to be, the court, or the judge thereof in vacation, shall enter an order of record to such effect, and may cause so many of such jurors as may be necessary to be summoned from any other county, properly construed, requires a defendant in a criminal case to be tried in the county in which the offense is alleged to have been committed, by a qualified jury of that county, unless it clearly appears that such jury can not be found in that county, in which event the trial court is empowered by the statute to cause to be summoned as many qualified jurors as may be necessary from some other county; and, as so construed, the statute is not violative of any provision of the Constitution of this State.
Unless it clearly appears that a qualified jury can not be obtained, at the time of trial, in the county in which the offense is alleged to have been committed, for the trial of the defendant in a criminal prosecution in that county, the court in which the prosecution is pending exceeds its legitimate powers under the statute, Code, 1931, 52-1-20, in causing jurors to be summoned from another county for the trial of the defendant.
When the court in which a criminal prosecution is pending exceeds its legitimate powers under the statute, Code, 1931, 52-1-20, in causing jurors to be summoned from a county other than the county in which the offense is alleged to have been committed, for the trial of an accused, upon an indictment for a felony, the writ of prohibition will issue from this Court to prevent such action, in advance of the trial and without requiring the accused to await the rendition of an adverse final judgment to seek relief from such judgment by writ of error.
Original prohibition proceeding by the State, on the relation of Oscar Cosner, against Honorable Ernest A. See, Judge of the Circuit Court of Mineral County, West Virginia, and others, respondents, to prevent the respondents from trying the relator on an indictment returned against him by a grand jury for murder.
Writ awarded.
H. G. Shores, Howard P. Shores and Emory Tyler for petitioner.
Vernon E. Rankin, for respondents.
In this original proceeding in prohibition, the petitioner, Oscar Cosner, seeks to prevent the respondents, the Honorable Ernest A. See, Judge of the Circuit Court of Mineral County, West Virginia, the clerk of that court, and the clerk of the Circuit Court of Tucker County, West Virginia, from trying him, in Mineral County, upon an indictment returned against him by a grand jury of that county for murder charged to have been committed by him in Mineral County, by a jury summoned from the nearby county of Tucker, pursuant to an order entered by the Circuit Court of Mineral County on November 7, 1946. Upon his petition this Court, on November 15, 1946, issued a rule against the respondents to show cause why the writ prayed for should not be awarded. Before the return of the rule, the respondent, the Judge of the Circuit Court of Mineral County, filed a demurrer and an answer to the petition. The petitioner filed a special replication to the answer. Upon these pleadings and upon the record of the proceedings in the trial court, this cause was submitted to this Court for decision upon the merits.
Upon the issuance of the rule, the Circuit Court continued the trial of the indictment until after the decision of this Court and recalled the writ of venire facias which had been issued by the trial court for forty-eight jurors from Tucker County.
The material facts are not disputed and the questions involved are questions of law. These questions are: (1) Is Section 20, Article 1, Chapter 52 of the Code, 1931, constitutional; and (2) if the statute is constitutional, did the trial court exceed its legitimate powers under the statute in ordering a jury to be summoned from Tucker County?
The petitioner, Oscar Cosner, was indicted in October 15, 1946, by a grand jury attending the regular October, 1946, term of the Circuit Court of Mineral County, for the murder of his wife in that county. On October, 16, 1946, he entered a plea of not guilty to the indictment, and the court set the case for trial on October 30, 1946. On that day the trial was continued until November 6, 1946, at which time, the State and the defendant, who was present in person and represented by counsel, being ready, the trial began. Of the original venire of forty-eight jurors, thirty-eight were then in court. Only eight of this number were accepted as qualified. Before proceeding further with the selection of the jury for the trial of the case, the judge of the trial court, without any sugges- tion or request from the State or the defendant, expressed the belief that a qualified jury could not be conveniently found in Mineral County and that he should call a jury from another county.
Both the Prosecuting Attorney and the attorney for the defendant urged the court to call fifty additional jurors. This the court refused to do but, after some hesitation, did cause forty more jurors to be summoned. Twenty-eight of these jurors appeared during the afternoon session of the court, and from that number only two qualified jurors were obtained. There being only ten qualified jurors available from the two groups of thirtyeight and twenty-eight, the court again gave expression to the view that no more jurors should be called from Mineral County and that a jury should be summoned from another county. Counsel for the defendant and the Prosecuting Attorney requested the court to call fifty additional jurors from the county, which request the court refused to grant. Instead, the court directed the clerk to call forty additional jurors to report the following day, November 7, 1946. At that time thirty of these jurors were present and from that number nine more qualified jurors were accepted, making a total of nineteen qualified jurors who were subject to further examination and challenge by the Prosecuting Attorney and the attorneys for the defendant. At this stage of the proceeding the court expressed the intention to summon a jury from another county and refused the request of counsel for the defendant that ten more jurors from Mineral County be called for the purpose of obtaining one additional juror to complete a panel of twenty jurors.
The defendant, after objecting and excepting to the foregoing action of the trial court, established, by evidence produced in open court, that only ninety six jurors had been examined and only one hundred and twenty eight of the five hundred and thirteen persons whose names appeared on the current list of available jurors of the county had been summoned; that three hundred and eighty five persons remained on the jury list who had not been called or examined as jurors; and that from a population of approximately twenty one thousand persons in Mineral County there were at least two thousand additional available jurors. Despite these facts, which are not challenged or controverted, the court voiced the opinion that a jury should be summoned from the nearby county of Tucker, in the Twenty-first Judicial Circuit of this State, which is composed of the counties of Mineral, Grant and Tucker. The defendant objected to this course of action for reasons which were assigned. The court overruled the objections of the defendant and, by order entered of record, directed that forty eight jurors from Tucker County be drawn to appear at the court house of Mineral County, West Virginia, on December 9, 1946, for the trial of the case, which order was certified to the clerk of the Circuit Court of Tucker County, and that a writ of venire facias be issued by the clerk of the Circuit Court of Mineral County to the sheriff of Tucker County commanding him to summon such jurors for service in Mineral County. To this action of the court the defendant entered timely objections and noted his exceptions.
In his answer the respondent, the Judge of the Circuit Court of Mineral County, admits, in substance, the occurrences detailed above, insists that they are fully authorized by the statute to which reference has been made, and states that he will proceed to try the defendant upon the indictment in Mineral County by a jury summoned from Tucker County, unless prohibited from so doing by this Court.
The contentions of the respondent, respectfully asserted and vigorously urged, are that the statute, Section 20, Article 1, Chapter 52, Code of West Virginia, 1931, is constitutional, and that in the action taken by the trial court, under the statute, it has not abused its discretion or exceeded its legitimate powers or authority. The petitioner insists that the statute deprives him of his common law right to be tried by a jury of Mineral County where the offense charged against him is alleged to have been...
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