State ex rel. Smith v. De Berry

• Decision Date: 27 June 1961
• Docket Number: 12107,Nos. 12106,s. 12106
• Citation: 146 W.Va. 534,120 S.E.2d 504
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Joe SMITH v. Honorable Max DE BERRY, Judge of the Circuit Court of Pleasants County. STATE of West Virginia ex rel. Richard Stanley BROOKS v. Honorable Max DE BERRY, Judge of the Circuit Court of Pleasants County.

Page 504

120 S.E.2d 504

146 W.Va. 534

STATE of West Virginia ex rel. Joe SMITH v. Honorable Max DE BERRY, Judge of the Circuit Court of

Pleasants County.

STATE of West Virginia ex rel. Richard Stanley BROOKS v. Honorable Max DE BERRY, Judge of the Circuit Court of

Pleasants County.

Nos. 12106, 12107.

Supreme Court of Appeals of West Virginia.

Submitted May 23, 1961.

Decided June 27, 1961.

Syllabus by the Court

1. The three regular terms of a court essential to the right of a defendant to be discharged from further prosecution, pursuant to provisions of Code, 62-3-21, as amended, are regular terms occurring subsequent to the ending of the term at which the indictment against him is found. The term at which the indictment is returned is not to be counted in favor of the discharge of a defendant.

2. Where a defendant is incarcerated in a county jail on a charge contained in an indictment returned in that county, he is not, within the meaning of Code, 62-3-21, as amended, held for trial on a charge alleged to have been committed in another county.

3. A defendant under indictment is not entitled to count as one of the terms of court essential to his discharge from further prosecution, as provided by Code, 62-3-21, as amended, any term of the court which occurred in part during the time he was without the jurisdiction of the court.

Fred L. Davis, Eugene T. Hague, Parkersburg, for relators.

Sam White, Pros. Atty., St. Marys, C. Donald Robertson, Atty. Gen., Andrew J. Goodwin, Asst. Atty. Gen., for respondent.

GIVEN, Judge.

Involved in these original proceedings in prohibition, against the Honorable Max DeBerry, Judge of the Circuit Court of Pleasants County, is the question of whether the petitioners, Joe Smith and Richard Stanley Brooks, at the relation of the State, should be discharged from further prosecution as to certain charges contained in five felony indictments returned by a grand jury of the Circuit Court of Pleasants County. No question of fact exists, the material or controlling facts being admitted by the answers filed in the respective cases. The matters are heard on the petitions, answers, briefs, certain evidence taken before the Circuit Court of Pleasants County, on motion to discharge petitioners from further prosecution, and on oral arguments of the respective parties. The problems of law involved, based on substantially the same facts, are the same in each case, and one opinion suffices.

On March 8, 1960, petitioner Smith was arrested on a warrant issued in Tyler County, charging a felonious assault, and was incarcerated in the Tyler County jail on that charge. Later, the person alleged to have been assaulted died from injuries received at the time of the assault, and Smith was, at the July, 1960, term of the Circuit Court of Tyler County, indicted on a charge of murder of the person assaulted. The petitioner Brooks was arrested and held in the Tyler County jail, in default of bond, as a material witness to the assault which resulted in the murder charge.

On March 16, 1961, during the March, 1961, term of the Circuit Court of Tyler County, Smith entered a plea of guilty to voluntary manslaughter, and was sentenced to the state penitentiary for a term of from one to five years. At the time Smith was sentenced Brooks was released from custody of the Tyler County authorities, but was immediately arrested in connection with the charges contained in the Pleasants County indictments here involved. It may be noticed that Smith and Brooks were each held in custody in the Tyler County jail from March 8, 1960, to March 16, 1961.

While petitioners were confined in the Tyler County jail, in connection with the Tyler County charges, a warrant was issued against them in connection with the Pleasants County charges, the charges made in the indictments here involved, and was read to them in the Tyler County jail by the officer to whom it was delivered, and petitioners were fully advised of such charges. Later, at the April, 1960, term of the Pleasants County Circuit Court, on the first day of that term, April 26, 1960, the five indictments were returned against petitioners, charging the commission of felonies in Pleasants County, being the five indictments mentioned above. Petitioner Smith was removed from the state penitentiary to Pleasants County, and the time for trials in that county on the five indictments was fixed for the April, 1961, term of the Circuit Court of that county, and the motion for discharge from prosecution having been overruled by the Circuit Court of Pleasants County, this Court awarded rules in prohibition, suspending further proceedings in the criminal cases, by virtue of Code, 53-1-9.

The prosecuting attorney of Pleasants County was at all times material advised as to the incarceration of apetitioners in the Tyler County jail, but made no effort to have them removed therefrom for prosecution in Pleasants County, other than to make a request of the prosecuting attorney of Tyler County to the effect that petitioners be surrendered to the Pleasants County authorities for prosecution, which was, apparently, refused.

From such facts it may be summarized that petitioners were held in custodyin the Tyler County jail for a period of time commencing before the beginning of the April, 1960, term of the Circuit Court of Pleasants County, and held continuously through the September, 1960, term, and the January, 1961, term of that court, no other term occurring in the meantime; that the indictments here involved were returned on the first day of the April, 1960, term of the Circuit Court of Pleasants County, and that the State made no real effort to bring the petitioners to trial on such indictments at the April and September, 1960, terms, or at the January, 1961, term, but did cause trial on the indictments to be set for the April, 1961, term.

From such facts two questions arise. First, is the April, 1960, term of the Circuit Court of Pleasants County, the term at which the indictments were returned, to be counted as one of the three terms required and intended within the meaning of Code, 62-3-21, as amended, to require the discharge of a defendant from further prosecution? And, second, were petitioners, by their incarceration in the Tyler County jail, in effect, 'remanded to a court of competent jurisdiction for trial,' within the meaning of that section?

The pertinent language of Code, 62-3-21, as amended, reads: 'Every person charged by presentment or indictment with a felony or misdemeanor, and remanded to a court of competent jurisdiction for trial, shall be forever discharged from prosecution for the offense, if there be three regular terms of such court, after the presentment is made or the indictment is found against him, without a trial, unless the failure to try him was caused by his insanity; or by the witnesses for the state being enticed or kept away, or prevented from attending by sickness or inevitable accident; or by a continuance granted on the motion of the accused; or by reason of his escaping from jail, or failing to appear according to his recognizance, or of the inability of the jury to agree in their verdict * * *.' The last amendment of the section, Chapter 40 of the 1959 Acts of the Legislature, extended the effects of the section to misdemeanors.

As often pointed out by this Court, the purpose of the pertinent statute is to assure a defendant a speedy trial. It is the legislative adoption or declaration of what, ordinarily, at least, constitutes a speedy trial within the meaning of Article III, Section 14 of the State Constitution, and of the Sixth Amendment to the Federal Constitution, and, of course, for the purpose intended should be liberally construed. See Hollandsworth v. Godby, 93 W.Va. 543, 117 S.E. 369; Ex parte Bracey, 82 W.Va. 69, 95 S.E. 593; Denham v. Robinson, Judge, 72 W.Va. 243, 77 S.E. 970, 45 L.R.A.,N.S., 1123, Ann.Cas.1915D, 997; Dudley v. State, 55 W.Va. 472, 47 S.E. 285; 22 A C.J.S. Criminal Law § 466, et seq.; 14 Am.Jur., Criminal Law, Section 134, et seq.

In State v. Gregory, 143 W.Va. 878, 105 S.E.2d 532, 533, we held: '1. Where an accused under indictment for an offense is without the jurisdiction, and returns to the jurisdiction to answer to the indictment on a day subsequent to the beginning of a regular term of the court having jurisdiction to try him for the offense, the term during which he returned is not to be counted in determining whether accused is entitled to discharge from prosecution by virtue of Code, 62-3-21.' See State v. Loveless, 142 W.Va. 809, 98 S.E.2d 773; State v. Wiseman, 141 W.Va. 726, 92 S.E.2d 910; State v. Underwood, 130 W.Va. 166, 43 S.E.2d 61; Dillon v. Tanner, 107 W.Va. 550, 149 S.E. 608; State v. McIntosh, 82 W.Va. 483, 96 S.E. 79; Ex parte Bracey, 82 W.Va. 69, 95 S.E. 593; Ex parte Anderson, 81 W.Va. 171, 94 S.E. 31; Denham v. Robinson, Judge, 72 W.Va. 243, 77 S.E. 970, 45 L.R.A.,N.S., 1123.

In Sands v. Commonwealth, 20 Grat. 800, 61 Va. 800, often cited by this Court, considering a very similar question...