State ex rel. Zirk v. Muntzing

• Decision Date: 06 June 1961
• Docket Number: No. 12099,12099
• Citation: 146 W.Va. 349,120 S.E.2d 260
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Wilson ZIRK v. H. G. MUNTZING, Judge of the Circuit Court of Hardy County. Case

Page 260

120 S.E.2d 260

146 W.Va. 349

STATE ex rel. Wilson ZIRK v. H. G. MUNTZING, Judge of the Circuit Court of Hardy County.

Case No. 12099.

Supreme Court of Appeals of West Virginia.

Submitted April 12, 1961.

Decided June 6, 1961.

Syllabus by the Court.

1. Upon a joint indictment for a felony, any one of the persons jointly indicted may, under Code, 1931, 62-3-8, elect to be tried separately.

2. 'The construction of a statute by a court of last resort becomes a component part of the statute.' Scott v. Rinehart & Dennis Co., Inc., 116 W.Va. 319, Point 2 Syllabus, .

3. When a statute has been construed by this Court and it is thereafter reenacted by the legislature in the same or substantially the same terms, there is a presumption that the legislature was familiar with such prior construction and intended the reenacted statute to have effect in accordance with such judicial construction.

4. 'The writ of prohibition lies as a matter of right when the inferior court does not have jurisdiction of the subject matter in controversy or, having such jurisdiction, exceeds its legitimate powers.' State, ex rel. Smith v. Bosworth, W.Va., Point 5 Syllabus, 117 S.E.2d 610.

Ralph J. Bean, John W. Hamilton, Bean & Hamilton, Moorefield, for relator.

C. Donald Robertson, Atty. Gen., Andrew J. Goodwin, Asst. Atty. Gen., Lewis S. Moomau, Pros. Atty., Hardy County, Moorefield, for respondent.

CALHOUN, Judge.

This case requires a determination whether a person jointly indicted with one or more other persons for a felony has an absolute right to elect to be tried separately.

On February 21, 1961, a grand jury of the Circuit Court of Hardy County returned a joint indictment for a felony against Wilson Zirk, the relator herein, and four other persons. While we are not called upon to construe the indictment and do not undertake to do so, the trial court, in response to demurrers and motions to quash, and by an order entered February 25, 1961, held that 'all defendants are properly charged with the offense of conspiring to commit murder.'

Each of the five jointly-indicted persons moved for a severance or separate trial. The verified written motion of the relator for a severance or separate trial alleges various grounds in support thereof. By an order entered on February 28, 1961, the trial court overruled the motions made severally by the five accused persons, directed that the case 'be tried jointly before one petit jury', and that the trial commence on March 27, 1961, to which rulings and action of the court each defendant objected and excepted.

On March 10, 1961, the relator presented to this Court his petition praying for a writ of prohibition to be directed against the respondent, the Honorable H. G. Muntzing, judge of the Circuit Court of Hardy County, prohibiting him from causing the relator to be tried jointly with the other persons accused by the indictment. On March 14, 1961, this Court directed that a rule issue to show cause in accordance with the prayer of the petition.

At common law, and in the absence of a statute changing the common law rule, when two or more persons are indicted for a crime, whether a felony or a misdemeanor, it is not necessary that they be tried jointly; but the state or any one of the defendants may apply to the court for a severance, the granting of which is not a matter of right, but rests in the sound discretion of the court, to be exercised solely in the interest of justice. Annotations, 54 A.L.R.2d 830, 131 A.L.R. 917, 104 A.L.R. 1519, and 70 A.L.R. 1171; 53 Am.Jur., Trial, Sections 56 and 57, page 65; 23 C.J.S. Criminal Law § 933, p. 217. In United States v. Marchant and Colson, 12 Wheat. 480, 25 U.S. 480, 6 L.Ed. 700, Mr. Justice Story carefully reviewed the authorities relating to the right to a severance and concluded as follows: 'Such is the substance of the reasons which induce us to decide against the claim as a matter of right. In our opinion, it is a matter of sound discretion, to be exercised by the court with all due regard and tenderness to prisoners, according to the known humanity of our criminal jurisprudence.' Apparently the general rule applies with full force in relation to joint indictments charging conspiracies. 23 C.J.S. Criminal Law § 933, pp. 222-223. Since at common law the matter rests in the sound discretion of the trial court, it becomes necessary to inquire whether such common law rule has been changed by statute in this state. The common law continues in force in this state except as altered by statute. Constitution of West Virginia, Article VIII, Section 21; Code, 1931, 2-1-1.

In the case of State v. Roberts, 50 W.Va. 422, 40 S.E. 484, the first point of the syllabus is as follows: 'Upon a joint indictment for felony against several persons, any defendant may elect, under section 8, c. 159, Code, to be tried separately, but is not entitled to demand to be tried jointly.' In the body of the opinion the Court stated: 'It is insisted that the court erred in compelling the prisoner to be tried separately, when he demanded to be tried jointly with James Roberts, one of the parties with whom he was jointly indicted, the defendants Edmond Murphy and Thomas Hardin having been tried prior thereto, and cites in support of his proposition, section 8, c. 159, Code, which provides, 'If persons jointly indicted elect to be, or are tried separately, the panel in the case of each, shall be made up as provided in the third section of this chapter.' This provision entitles the defendant to elect to be tried separately, if he so chooses, but not to demand to be tried jointly.' (Italics supplied.)

In the case of State v. Prater, 52 W.Va. 132, 43 S.E. 230, 239, the fifth point of the syllabus is as follows: 'On a joint indictment of two or more persons, the state, with the permission of the court, may elect to try any or all of them separately.' (Italics supplied.) In the body of the opinion the Court stated: 'The accused and Lum Prater elected to be tried separately, and when the accused was brought to trial he attempted to withdraw his motion for a separate trial, but it was resisted by the state, and, the state desiring to try them separately, the court refused leave to withdraws: and this is made the ground of an unavailing exception. In Curran's Case, 7 Grat. 619, it is held that, on a joint indictment against several, the state may elect to try them separately: and this has been approved in State v. Roberts, 50 W.Va. 422, 40 S.E. 484. Under our statute, each defendant has a right to a separate trial, if he so elect. If no election is made either by the state or any of the defendants the trial is joint, but the defendant cannot insist upon a joint trial against the election of the state to try them separately, unless the court, in its discretion, refuses to permit the state to try separately.' (Italics supplied.)

The effect of the language of the Court in the cases of State v. Roberts, supra, and State v. Prater, supra, appears to be to recognize that, at common law, either the state or a jointly-indicted defendant had the right to request a severance in a criminal case, the granting of which was left to the sound discretion f the trial court; but it was stated by the Court in both cases that the common law rule has been changed by statute in this state to the extent of according an absolute right to a severance to one jointly indicted with one or more others for a felony. In other words, the effect of the language of the Court in the two cases referred to immediately above appears to be that the statute has changed the common law so as to accord to the accused in a felony case an absolute right to elect to be tried separately; but that, in all other respects, the statute leaves the common law unchanged. Accordingly, in the case of State v. Barrick, 60 W.Va. 576, 579, 55 S.E. 652, 653, the Court stated: 'The state can choose to try defendants jointly indicted either jointly or separately, if the court allows it.' (Italics supplied.)

Code, 1931, 2-2-10(z), provides: 'The sectional headings or headlines of the several sections of this Code printed in black faced type are intended as mere catchwords to indicate the contents of the section and shall not be deemed or taken to be titles of such sections, or as any part of the statute, * * *.' The statute relating to the trial of persons jointly indicted for a felony has remained unchanged since the decision by this Court in the case of State v. Roberts, supra, in the year 1901. The heading or headlines of that statute, which now appears as Code, 1931, 62-3-8, are as follows: 'Jury Where Defendants Tried Jointly; Striking Jurors; Separate Trial.' The statute itself is as follows: 'Persons indicted and tried jointly, for a felony, shall be allowed to strike from the panel of jurors not more than six thereof, and only such as they all agree upon shall be stricken therefrom; and if they can not agree upon the names to be so stricken off, the prosecuting attorney shall strike therefrom a sufficient number of names to reduce the panel to twelve. If persons jointly indicted elect to be, or are, tried separately, the panel in the case of each shall be made up as provided in the third section of this article.' (Italics supplied.) The 'third section' has reference to Code, 1931, 62-3-3, as amended, which, so far as pertinent, is as follows: 'In a case of felony, twenty jurors shall be drawn from those in attendance for the trial of the accused. If a sufficient number of jurors for such panel cannot be procured in this way, the court shall order others to be forthwith summoned and selected, until a panel of twenty jurors, free from exception, be completed, from which panel the accused may strike off six jurors and the prosecuting attorney may strike off two jurors. The prosecuting attorney shall first strike off two jurors, and then the accused six. If the accused failed to strike from such panel the number of...