State v. Bailey

Decision Date31 March 1970
Docket NumberNo. 12922,12922
PartiesSTATE of West Virginia v. Susie Jane BAILEY.
CourtWest Virginia Supreme Court

Syllabus by the Court

A writ of error granted by this Court upon application of the State to review an order of a circuit court in a criminal case suppressing evidence to be introduced by the State at the trial of an indictment for murder in such case is not authorized by any provision of the Constitution or statutes of this State and will be dismissed as improvidently awarded.

Chauncey H. Browning, Jr., Atty. Gen., George E. Lantz, Deputy Atty. Gen., Willard A. Sullivan, Cheryl A. Wheeler, Asst. Attys. Gen., Charleston, for plaintiff in error.

Thomas Munchmeyer, Robert Black, Parkersburg, for defendant in error.

HAYMOND, Judge.

In this criminal proceeding upon an indictment for murder against the defendant Susie Jane Bailey, an infant of the age of fifteen years, returned by a grand jury of Wood County, the State of West Virginia sought and obtained from this Court a writ of error and supersedeas to an order of the Circuit Court of Wood County, entered October 15, 1969, by which that court upon a pretrial hearing overruled a plea of immunity by the defendant and sustained her motion to suppress and ruled as inadmissible evidence at the trial of the case statements made by her to certain investigating officers and her acts at the scene of a fire in which her parents and her ten brothers and sisters perished.

By this writ of error, awarded January 26, 1970 at the instance of the State, it seeks review and reversal of the foregoing order and remand of the case to the Circuit Court of Wood County for trial.

Upon motion of the State it was granted leave to move to reverse the order of the circuit court and on March 3, 1970, the case was submitted for decision upon the motion to reverse, the transcript of the evidence, and the written briefs and the oral arguments of the attorneys in behalf of the State and the attorneys in behalf of the defendant.

On June 8, 1969, E. L. Roush, an assistant State fire marshal, began an investigation of a fire which consumed the home of Charles Bailey at Parkersburg, West Virginia, during the night of June 7 and 8, 1969. In the fire Charles Bailey, his wife, and ten of their thirteen children perished. Their three surviving children are Mrs. Judith Fury, an adult, the defendant Susie Jane Bailey age fifteen years, and Roger Bailey age thirteen years and a defendant in other criminal proceedings in which he has been indicted for murder.

During the investigation conducted by Roush, Pringle, an inspector of the Parkersburg Bureau of Fire Prevention, and Barrows, a city detective, which continued from June 8 to June 10, 1969, the defendant, upon interrogation, made certain statements, oral and written, and engaged in certain acts of an incriminating nature at the scene of the fire in connection with its cause and origin; and as a result of the information given by the defendant in the investigation she was arrested at noon on June 10, 1969, and counsel was appointed by the Circuit Court of Wood County to represent her.

The defendant was indicted by the grand jury on July 15, 1969 and twelve murder indictments were returned against her. On July 18, 1969, she pleaded not guilty to the charge contained in one of the indictments. On August 5, 1969, the court fixed September 15, 1969 as the date for a hearing on a plea of immunity by the defendant and on that day she filed a motion to suppress the statements made by her. A pretrial hearing on the motion was held on September 15 and 16, 1969. The hearing revealed that the defendant had an I.Q. of 71; that her mental age, expressed in terms of chronological age, is ten years and four months; that her reading ability is on the fifth grade level; and that the normal I.Q. range is 90 to 110.

After the defendant had filed a plea of not guilty but before the commencement of any trial of the case upon its merits, and in connection with the order of October 15, 1969, the circuit court filed a written opinion giving the reasons for its decision to sustain the motion of the defendant to suppress the evidence. From its opinion it appears that the court concluded that the record did not reveal that the defendant had any prior police or trial experience or that she knew of her constitutional rights to remain silent and to have the assistance of counsel, and that she was not informed of the advice and assistance that could be afforded her by an attorney. In consequence, it was the opinion of the court that she did not knowingly and intelligently waive her constitutional rights to remain silent and to have advice of counsel and that her waiver of her rights was invalid.

On October 20, 1969, the court overruled the motion of the State to stay proceedings in the case pending an appeal to this Court, and on October 22, 1969, the State filed its notice of intent to appeal.

The State filed an affidavit of the prosecuting attorney in which he states that the case of the State against the defendant has been based almost entirely upon the defendant's statements to Roush and the city detective and the evidence which she has furnished, and that without such statements and evidence it would be imposible to obtain conviction in any of the twelve cases in which she has been indicted for murder.

The State assigns as error the action of the court (1) in ruling that the defendant could not and did not knowingly and intelligently waive her constitutional rights to remain silent and have the advise of counsel and that the waiver signed by her is invalid; and (2) in sustaining the motion of the defendant to suppress as evidence the statements made by her to the fire marshal and the city detective and the acts of the defendant at the scene of the alleged crime and all the evidence obtained as a result of her statements and acts.

The threshold and controlling question to be determined is whether the State may obtain, and this Court has jurisdiction to grant, a writ of error to review an order of a circuit court suppressing, before the trial, evidence sought to be admitted in a forthcoming trial upon an indictment for an offense which is punishable by imprisonment of the defendant.

If the answer to that decisive question is in the negative the questions whether an interlocutory order in a criminal case is appealable in the absence of a statute making it appealable and whether the ruling of the court on the motion to suppress was correct need not be considered or determined.

The principle is well established that the jurisdiction of this Court, original as well as appellate, is conferred by and is derived wholly from the Constitution and the statutes of this State enacted in pursuance of the Constitution. State v. Legg, 151 W.Va. 401, 151 S.E.2d 215; Cost v. MacGregor, 123 W.Va. 316, 14 S.E.2d 909; Carskadon v. Board of Education, 61 W.Va. 468, 56 S.E. 834; State v. Shumate, 48 W.Va. 359, 37 S.E. 618; 1B M.J., Appeal and Error, Section 25; 4 Am.Jur.2d, Appeal and Error, Section 4. In State v. Shumate, 48 W.Va. 359, 37 S.E. 618, the opinion by Judge Brannon contains this pertinent language: 'My understanding is that the jurisdiction of this Court is fixed by the Constitution and statutes, and that there can be no writ of error or appeal, except in those cases warranted by the Constitution or statutes. Such I understand to be the general law wherever the Constitution or statutes assume to specify the cases in which a writ of error and appeal shall lie, as in West Virginia is the case. I suppose that where no constitution or statute does specify, the common law writ of error or appeal lies; but such is not the case in West Virginia. We must therefore find either in the Constitution or statute law authority thority to entertain this writ of error.'

In 4 Am.Jur.2d, Appeal and Error, Section 4, are these statements: 'Appellate jurisdiction is derived from the constitutional or statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed. Thus, the determination of the existence and extent of appellate jurisdiction depends upon the terms of the statutory or constitutional provisions in which it has its source.'; and 'If the matter does not fall within the appellate jurisdiction, the appeal should be dismissed, * * *.'

Article VIII, Section 3, of the Constitution of this State, relating to the scope of jurisdiction of the Supreme Court of Appeals provides:

'It shall have original jurisdiction in cases of habeas corpus, mandamus, and prohibition. It shall have appellate jurisdiction in civil cases where the matter in controversy, exclusive of costs, is of greater value or amount than one hundred dollars; in controversies concerning the title or boundaries of land, the probate of wills, the appointment or qualification of a personal representative, guardian, committee or curator; or concerning a mill, road, way, ferry or landing; or the right of a corporation or county to levy tolls or taxes; and, also, in cases of quo warranto, habeas corpus, mandamus, certiorari and prohibition, and in cases involving freedom or the constitutionality of a law. It shall have appellate jurisdiction in criminal cases where there has been a conviction for felony or misdemeanor in a circuit court, and where a conviction has been had in any inferior court and been affirmed in a circuit court, and...

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9 cases
  • State v. Lewis
    • United States
    • West Virginia Supreme Court
    • 6 Julio 1992
    ...in a criminal case under W.Va.Code, 58-5-2, we have touched on this question in several cases. For example, in State v. Bailey, 154 W.Va. 25, 173 S.E.2d 173 (1970), we discussed generally our appellate jurisdiction in criminal cases. There, the State sought, by way of a writ of error, to ap......
  • State v. Jones, 17638
    • United States
    • West Virginia Supreme Court
    • 19 Noviembre 1987
    ...W.Va. 35, 41, 277 S.E.2d 718, 722 (1981), that "the right of the State to ... appeal in criminal cases is limited." In State v. Bailey, 154 W.Va. 25, 173 S.E.2d 173 (1970), the State sought to appeal an order of the circuit court granting the defendant's motion to suppress evidence that was......
  • Scott v. Stewart
    • United States
    • West Virginia Supreme Court
    • 12 Diciembre 2001
    ...or statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed." State v. Bailey, 154 W.Va. 25, 29, 173 S.E.2d 173, 175 (1970),modified on other grounds by State v. Walters, 186 W.Va. 169, 411 S.E.2d 688 (1991). Moreover, while the state cons......
  • State v. Collins
    • United States
    • Ohio Supreme Court
    • 9 Diciembre 1970
    ...decided herein. See State v. Johnson (1968), 50 Hawaii 525, 445 P.2d 36; State v. Bonhart (Tenn.1969), 448 S.W.2d 669; State v. Bailey (W.Va.1970), 173 S.E.2d 173; State v. Mather (1969), 7 Md.App. 549, 256 A.2d 532. Cf. State v. Horton (1970), 7 N.C.App. 497, 172 S.E.2d ...
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