State ex rel. Zirk v. Muntzing

• Decision Date: 12 December 1961
• Docket Number: No. 12124,12124
• Citation: 122 S.E.2d 851,146 W.Va. 878
• Court: West Virginia Supreme Court
• Parties: , 94 A.L.R.2d 1033 STATE ex rel. Wilson ZIRK v. Honorable H. G. MUNTZING, Judge, Circuit Court of Hardy County, West Virginia.

Page 851

122 S.E.2d 851

146 W.Va. 878, 94 A.L.R.2d 1033

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

County, West Virginia.

No. 12124.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 6, 1961.

Decided Dec. 12, 1961.

Syllabus by the Court.

1. When it appears, from the allegations of a plea of former jeopardy to an indictment for the murder of a designated person under the statute creating that offense, which allegations are admitted to be true and correct and which plea has been held to be insufficient in law by the court in which the indictment for murder is pending, that the defendant together with other persons was subsequently indicted for conspiracy to commit murder of the same person under a statute which provides that if the death of any person shall result from the conspiracy every person engaged in such conspiracy shall be guilty of murder of the first degree, that in the trial of the defendant on the indictment for conspiracy he was tried for the crime of murder and was found not guilty by the verdict of the jury, that the person alleged in both indictments to have been murdered by the defendant was the same person, and that the death of such person was caused by the defendant at the same time and place and in the same manner set forth in each indictment, such plea sufficiently states the defense of former jeopardy and shows that if the defendant is tried on the indictment for murder he will be twice put in jeopardy of life or liberty for the same offense in violation of the constitutional provision that no person shall be twice put in jeopardy of life or liberty for the same offense.

2. When the court in which a criminal prosecution is pending exceeds its legitimate powers in requiring the trial of a defendant on an indictment for murder, after holding insufficient in law a plea of former jeopardy to such indictment in which the material facts have been conceded to be true and correct and which show that the defendant has been acquitted by the verdict of a jury upon the merits on a trial for the same offense charged in a second indictment and that to try him again on the first indictment would put him twice in jeopardy of life or liberty for the same offense, the writ of prohibition will issue from this Court to prevent such action in advance of such 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.

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

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

HAYMOND, President.

In this original proceeding in prohibition, instituted in this Court July 13, 1961, two questions, which will be dealt with conversely to the order in which they are stated, are presented for decision. Those questions are: (1) Whether prohibition lies to prevent the petitioner, Wilson Zirk, from being twice put in jeopardy of life or liberty for the same offense by the respondent, Honorable H. G. Muntzing, Judge of the Circuit Court of Hardy County, West Virginia, in a criminal proceeding upon an indictment for the murder of Eldridge Lee Ritter returned against the petitioner and now pending in that court; and (2) whether the offense set forth in a subsequent joint indictment against the petitioner and four other persons charging them with conspiracy to murder Eldridge Lee Ritter, upon the trial of which indictment the petitioner was found not guilty by the verdict of the jury, is the same offense as that charged against the petitioner in the first mentioned indictment for murder.

On September 6, 1961, the day to which the rule was returnable, this proceeding was submitted for decision upon the petition and its exhibits, among which are copies of the petitioner's plea of former jeopardy and the order of the circuit court holding the plea to be insufficient to law entered July 10, 1961, the answer of the respondent and the written briefs and oral arguments of the attorneys for the respective parties.

There is no conflict in the material facts and the questions for decision are questions of law.

On August 2, 1960, the petitioner was indicted by the grand jury of Hardy County, West Virginia, for the murder of Eldridge Lee Ritter in July 1960. Upon his trial for that offense in December 1960 in that court the jury, being unable to agree upon a verdict, was discharged from further consideration of the case. Subsequently on February 21, 1961, the grand jury of Hardy County returned a joint indictment against the petitioner and four other persons charging them with the crime of conspiracy to commit the murder of the same Eldridge Lee Ritter on the same day in July 1960. Upon the separate trial of the petitioner on that indictment the jury returned a verdict of not guilty and by final unappealable judgment entered July 1, 1961, upon the foregoing verdict of not guilty, the petitioner was discharged in that proceeding. By order entered June 30, 1961, a copy of which is filed as an exhibit with the petition, the circuit court fixed July 17, 1961, as the date for a second trial of the petitioner upon the original indictment for murder. On July 10, 1961, the petitioner filed his plea of former jeopardy, setting forth his acquittal on July 1, 1961, under the indictment for conspiracy to commit murder, as a bar of any prosecution under the original indictment for murder and prayed that he be forever released and discharged by the circuit court from the charge of murder in the indictment returned against him August 2, 1960. By order entered July 10, 1961, the circuit court held the petitioner's plea of former jeopardy to be insufficient in law and recited that the facts and allegations in that plea were stipulated to be true and correct by the prosecuting attorney of Hardy County and by the attorneys for the petitioner.

The petitioner's plea of former jeopardy, which though designated 'Defendant's Plea of Double Jeopardy' is a plea of autrefois acquit to the indictment for murder in the pending criminal proceeding, alleges, in substance, these facts, which are conceded by the respective parties and accepted by the circuit court to be true and correct: The murder indictment charges that the petitioner Zirk, in July 1960, feloniously, wilfully, maliciously, deliberately and unlawfully, did slay, kill and murder Eldridge Lee Ritter, in Hardy County, West Virginia, and the trial of that proceeding was set for July 17, 1961. After the trial on the murder indictment in December 1960, in which the jury disagreed and was discharged, the petitioner and four other persons were indicted on February 21, 1961, for the crime of conspiracy to commit murder, which indictment alleges that the petitioner on August 2, 1960, was indicted for the murder of Eldridge Lee Ritter and that such indictment was then pending in the Circuit Court of Hardy County. The indictment for the crime of conspiracy to commit murder also alleges that the four other persons in July 1960 were present when a serious wound was inflicted by the petitioner upon Eldridge Lee Ritter; that after the wound was inflicted Ritter lived and languished for possibly thirty to sixty minutes when, as a result of the wound, Ritter died; that after his death the petitioner and the four other persons feloniously, wilfully, maliciously, deliberately and unlawfully counseled, conspired, aided, abetted and assisted in the commission of the murder of Ritter and in the suppression of evidence concerning the murder by transporting him while still alive to a deserted place in Hardy County and leaving him there to die as the result of the wound inflicted upon him by the petitioner, by agreeing not to give aid, assistance or help to save Ritter from death from his wound, by deserting and abandoning him so that he could not receive or obtain help to save his life, and by returning to the scene where the wound was inflicted and agreeing not to apprise or inform any one concerning the acts and events which finally resulted in Ritter's death. The petitioner was separately tried on the indictment for conspiracy to commit murder and on July 1, 1961, the jury returned a verdict which found him to be not guilty, which verdict was confirmed by the final judgment of the circuit court entered July 1, 1961. In the trial of the conspiracy to commit murder the circuit court instructed the jury that one of these four verdicts could be returned by the jury: (1) Conspiracy to commit murder of the first degree, with recommendation of mercy; (2) conspiracy to commit murder of the second degree; (3) conspiracy to commit voluntary manslaughter; or (4) not guilty. The petitioner who was tried and acquitted of the charge of conspiracy to commit murder is the same person who is charged with the murder of Eldridge Lee Ritter in the indictment returned August 2, 1960, the trial of which was set for July 17, 1961. The victim of the offense charged against the petitioner in each of the foregoing two indictments, Eldridge Lee Ritter, is the same person and his death, as alleged in both indictments, occurred at the same time and resulted from the same acts which are alleged to have been committed by the petitioner. In the earlier trial of the indictment for murder, in which the jury disagreed and no verdict was rendered, the circuit court instructed the jury that one of these five verdicts could be returned by the jury: (1) Murder of the first degree, with recommendation of mercy; (2) murder of the second degree; (3) voluntary manslaughter; (4) involuntary manslaughter; or (5) not guilty. The witnesses used by the State in the trial of the indictment for conspiracy to commit murder, in which trial the jury returned a verdict of not guilty, the witnesses who testified in the trial of the indictment for murder, in which no verdict was...