State Of West Va. v. McLane, (No. 9790)

• Court: Supreme Court of West Virginia
• Citation: 128 W.Va. 774
• Decision Date: 07 May 1946
• Docket Number: (No. 9790)
• Parties: State of West Virginia v. R. H. McLane

128 W.Va. 774

State of West Virginia
v.
R. H. McLane

(No. 9790)

Supreme Court of Appeals of West Virginia.

Submitted April 16, 1946.
Decided May 7, 1946.

[128 W.Va. 774]

1. Criminal Law

A circuit court has no jurisdiction to grant a writ of error to the judgment of a court of limited jurisdiction rendered more than four months before the petition therefor is presented to the circuit court or the judge thereof.

2. Appeal and Error

Jurisdiction to review the judgment of a court of limited jurisdiction by appellate process is vested exclusively in circuit courts; but if a circuit court, having lost its jurisdiction by lapse of the statutory time for presenting the petition for such review, assumes to act and pronounces judgment, such judgment is void, and a writ of error from this Court may be awarded thereto for the sole purpose of so adjudicating.

Error to Circuit Court, Kanawha County.

R. H. McLane was convicted of involuntary manslaughter in the Intermediate Court of Kanawha county, and to review a judgment of the Circuit Court which affirmed the judgment of conviction, he brings error.

Judgment of Circuit Court set aside and case remanded to Intermediate Court.

Howard B. Lee and R. A. Blessing, for plaintiff in error.

Ira J. Partlow, Attorney General, and Ralph M. Hiner and Eston B. Stephenson, Assistant Attorneys General, for defendant in error.

Lovins, Judge:

R. H. McLane was convicted of the offense of involuntary manslaughter in the Intermediate Court of Kana

[128 W.Va. 775]

wha County, sentenced to pay a fine of five hundred dollars, and to imprisonment in the county jail for a term of twelve months. On petition of defendant, this Court awarded a writ of error to the judgment of the Circuit Court of Kanawha County, affirming the judgment of the trial court.

Defendant was indicted at the January, 1941, term of the Intermediate Court of Kanawha County, for the murder of Carl Burford. He was convicted of murder of the second degree and sentenced accordingly. The verdict was set aside and judgment thereon reversed on writ of error to the Circuit Court of Kanawha County. On the second trial defendant was again convicted of murder of second degree. A writ of error to the judgment rendered in the second trial was awarded by the Circuit Court of Kanawha County, and on hearing by that court the judgment was affirmed. This Court granted a writ of error to review the judgment of affirmance pronounced by the Circuit Court of Kanawha County, and, on hearing, the judgments of the Intermediate and Circuit Courts of Kanawha County, pronounced in the second trial, were reversed, a new trial awarded, and the case remanded to the Intermediate Court. State v. McLane, 126 W. Va. 219, 27 S. E. 2d 604. The third trial resulted in the verdict and judgment, a review of which is sought by this writ of error.

The judgment here considered was rendered May 13, 1944. On defendant's motion, various stays of execution of the sentence were granted, the last stay expiring October 25, 1944. The certificate appended to the transcript of evidence was signed by the Judge of the trial court on the 12th day of October, 1944, and the certificate of the clerk of the trial court, showing that a deposit for costs had been made and that a copy of the petition to the Circuit Court of Kanawha County for writ of error was filed in the said clerk's office, bears the date of October 18, 1944.

[128 W.Va. 776]

The petition for writ of error and supersedeas was filed by order of the Circuit Court of Kanawha County on October 20, 1944. Thereafter the circuit court...