State v. Bailey
| Decision Date | 11 September 1928 |
| Docket Number | 6354. |
| Citation | 144 S.E. 574,106 W.Va. 32 |
| Parties | STATE ex rel. CHAFIN, Pros. Atty., v. BAILEY, Judge. |
| Court | West Virginia Supreme Court |
Submitted September 5, 1928.
Syllabus by the Court.
Where the jury in a murder trial returns a verdict of guilty of murder in the first degree, without further finding that the convict shall be confined in the penitentiary for life, the only sentence which can be pronounced is that of death, as prescribed by law. And where such sentence has been duly and properly pronounced by the trial court, and upon writ of error to the appellate court is affirmed, and the case is remanded to the trial court, with directions to take proper action to carry its judgment so pronounced into effect, the trial court cannot change its former sentence and impose on the prisoner other than the death penalty; and mandamus will issue to compel him to take proper action to carry out the sentence as originally pronounced and affirmed.
Original proceeding in mandamus by the State, on the relation of Lafe Chafin, Prosecuting Attorney, against Hon. R. D. Bailey Judge, to compel said judge to pronounce sentence of death on Clyde Beale, convicted of murder in first degree. Writ awarded.
H. B Lee, Atty. Gen., R. A. Blessing and W. Elliott Nefflen, Asst Attys. Gen., and Lafe Chafin, Pros. Atty., of Williamson, for relator.
R. D. Bailey, of Pineville, pro se.
LIVELY P.
The state, at the relation of Lafe Chafin, prosecuting attorney, seeks to compel Hon. R. D. Bailey, judge of the circuit court of Mingo county, by the peremptory writ of mandamus to pronounce sentence of death upon Clyde Beale found guilty of murder in the first degree without recommendation by a jury of that county.
The material facts set out in the petition for basis of the writ are substantially as follows: Beale was legally indicted, tried, and convicted of murder in the circuit court of Mingo county, the verdict being:
This verdict was returned on July 24, 1926, whereupon, on July 28, 1926, the court pronounced a sentence of death on the prisoner as prescribed by law and fixed the 7th day of September, 1926, for its execution by the warden of the penitentiary. A writ of error was awarded by the Supreme Court, and the judgment and sentence affirmed by that court on November 22, 1927, and inasmuch as the time for execution of the sentence had expired the case was remanded to the circuit court of Mingo county, with directions to take proper action to carry its judgment into effect. After the mandate of the Supreme Court had been received by the circuit court, the judge thereof, instead of fixing another date for the execution of Beale, on July 18, 1928, pronounced another sentence which directed that the prisoner be confined in the state penitentiary for life. It is asserted by the state at the relation of the prosecuting attorney that the circuit court had no power or jurisdiction to pronounce a sentence of life imprisonment, and that the only sentence which the judge had jurisdiction or power to impose was the sentence of death originally pronounced by him after the coming in of the verdict, and fixing a new date for the execution, which is a mere ministerial act. And the prayer is that respondent be directed and commanded to set aside, vacate, and annul the sentence pronounced by him on July 18, 1928, and to further direct and command said respondent to carry out the former judgment and the mandate of the appellate court.
The material facts of the petition are not controverted by the return to, and motion to quash, the alternative writ. The return admits the imposition of the death penalty on July 28 1926, and which directed that the prisoner should be hanged, and that on the 18th day of July, 1928, the prisoner was sentenced to confinement in the penitentiary for life, in lieu of fixing a date upon which he should be hanged. And the return says that it was not necessary for him to again impose the death sentence as that had already been done on July 28, 1926. The reasons assigned by respondent for refusing to carry out the sentence of the death penalty, formerly imposed, by fixing a new date for the execution, and for entering the sentence of life imprisonment, are substantially that, since the conviction and sentence of death, he has been convinced of the innocence of the defendant and has felt that the prisoner had not had a fair and impartial trial before an unbiased jury of his fellow men, and that the witnesses upon...
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