State v. Bouchelle

• Decision Date: 25 September 1950
• Docket Number: No. 10198,10198
• Citation: 134 W.Va. 34,61 S.E.2d 232
• Parties: STATE, v. BOUCHELLE, Judge, et al.
• Court: West Virginia Supreme Court

Page 232

61 S.E.2d 232

134 W.Va. 34

STATE, v. BOUCHELLE, Judge, et al.

No. 10198.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 1949.

Decided Oct. 1, 1949.

Opinion Filed Aug. 3, 1950.

Dissenting Opinion Sept. 25, 1950.

Syllabus by the Court.

In a county wherein there has been established by law a court of limited jurisdiction, with general power to try all persons charged with crime committed in such county, and to which is committed, in the first instance, the custody of all persons so charged with crime, the circuit court of such county exceeds its legitimate power to grant bail, where, after such court of limited jurisdiction has refused to grant bail to a particular person applying therefor, such person applies to such circuit court by oral motion for bail in the same case, and such person is by it admitted to bail. In such circumstances the power of the circuit court to grant bail must be exercised through writ of error to such court of limited jurisdiction, or the writ of habeas corpus.

Frank L. Taylor, Pros. Atty. of Kanawha County, W. Va., Herbert W. Bryan, Asst. Pros. Atty. for Kanawha County, W. Va., Charleston, for petitioner.

T. C. Townsend, Hillis Townsend, and Joseph Thomas, Charleston, for respondents.

FOX, Judge.

The narrow question presented in this proceeding is whether the Circuit Court of Kanawha County may, on oral motion for bail, grant such bail in circumstances where application for such bail had been made to, and refused by, the Intermediate Court of Kanawha County, a court possessing general criminal jurisdiction subject, however, to appeal by writ of error to the circuit court of said county, and which intermediate court had custody of the respondent, E. A. McCoy, to whom such bail was granted by the circuit court. No question is raised as to the constitutional and statutory power of the circuit court of said county to grant bail where a case is before it on a writ of error, or where the writ of habeas corpus has been invoked therefor; nor is any question raised as to the right of said circuit court to grant bail, on oral motion, where it has the custody of the person of the party applying therefor.

The facts giving rise to this dispute are that the respondent, E. A. McCoy, was under indictment with other parties, on five separate charges of misdemeanors, growing out of alleged violations of the laws of the State against gambling and the unlawful sale of intoxicating liquors, in the Intermediate Court of Kanawha County. He was tried on one of said charges, convicted and sentenced to confinement in the jail of Kanawah County and required to pay a fine. The judgment of fine and imprisonment was upheld by the Circuit Court of Kanawha County on May 18, 1949, and suspended for sixty days to permit a presentation of the case to this Court, but such presentation was not made within such extension period. A trial on another one of said charges was fixed for the 29th day of June, 1949. Immediately prior thereto, said respondent left this State and became a fugitive from justice, and was later located in the State of Tennessee. In the meantime, the bond he had given for his appearance for trial was forfeited. Extradition proceedings were instituted in Tennessee, but upon being advised by the proper authorities of that State that the warrant for his extradition to West Virginia would be awarded, respondent, on July 12, 1949, voluntarily returned to West Virginia and surrendered himself to the custody of the Intermediate Court of Kanawha County. In these circumstances he made application to said intermediate court for bail on July 20, 1949, and his motion was denied. On July 25, 1949, he made an oral motion in the Circuit Court of Kanawha County for the bail which the intermediate court had denied him, and said court on July 26, 1949, without any showing of cause, entered an order granting bail. On July 29, 1949, the petition in this case was filed, and on August 1, 1949, the rule in prohibition now before us was granted, requiring the respondent, Julian F. Bouchelle, Judge, and E. A. McCoy to appear before this Court on September 7, 1949, to show cause why the respondent judge should not be prohibited from further enforcing his order in granting bail as aforesaid. There was filed by the respondent Bouchelle, Judge, a demurrer to said petition, a motion to strike certain portions thereof, and an answer to said petition which does not raise any substantial questions of fact, and the case was submitted on the pleadings. On October 1, 1949, an order was entered by this Court granting a writ of prohibition inhibiting the said respondents, and each of them, from proceeding further in the enforcement of the order made by the Circuit Court of Kanawha County on July 26, 1949, admitting the said E. A. McCoy to bail, which order entered by this Court held that the order granting the bail aforesaid was void for the reason that in entering the same the Circuit Court of Kanawha County, in the circumstances, exceeded its legitimate powers. The order entered by this Court made provision for the filing of an opinion in the case, and such opinion is now filed. Such order was concurred in by Judge Kenna, now deceased, and this opinion represents the views of Judges Fox and Lovins, and, it is believed those held by Judge Kenna at the time the order aforesaid was entered.

While the granting of bail is now controlled by our statute, Section 6, Article 1, Chapter 62, Acts of the Legislature, 1937, Michie's Code, 1949, 62-1-6, it may not be out of place to refer to the common law rule in respect to the granting of bail. In 6 Am.Jur. 65, this rule is stated to be: 'Under the common-law rule, bail was not granted as a matter of right, but was granted or denied in the exercise of a sound discretion, subject to certain established principles and precedents which provided the guide by which the court exercised its discretionary powers to the fullest advantage and in accordance with the soundest principles of justice. It has been said, however, that the policy pervading our jurisprudence in this respect, and the unmistakable trend, is to commit as little as possible to judicial discretion.' Some of the states have made the granting of bail a constitutional privilege, and, of course, there prevails a rule found in most Constitutions that excessive bail shall not be required. Section 5 of Article III of our State Constitution provides that: 'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. * * *' This, of course, implies that courts should, in proper cases, grant bail, and requires them to conform to the provisions of the Constitution quoted above. The manner of granting bail was controlled by statute in Virginia prior to the formation of this State. Section 6, Chapter 204, Virginia Code, 1849, provides that a circuit court, or the general court, or any judge thereof, might admit a person to bail before conviction, and in substance the same provision is contained in the corresponding section of the Virginia Code of 1860.

Section 6 of Chapter 156, Code, 1868, provides that: 'A justice may let to bail a person who is charged with, but not convicted of, an offense not punishable with death. If the offense be punishable by confinement in the penitentiary, he shall not admit such person to bail in a less sum than five hundred dollars. But a justice shall not admit any person to bail, if bail has been previously refused to such person by any court, judge, or justice; nor shall any person, confined in jail by an order of commitment, in which the amount of bail he is to give is specified, or where an order has been made by a court or judge fixing the bail such person is to give, be admitted to bail by a justice in a less sum than is specified in such order. But a circuit court, or a judge thereof in vacation, may, for good cause shown, admit any person to bail before conviction.'

It will be noted that, for the first time, the requirement that good cause be shown for the admission of a person to bail is incorporated in the statute. Section 6 of Chapter 89, Acts of the Legislature, 1872, deals with the granting of bail, and contains this provision: 'But a circuit court or a judge thereof, in vaction, may, for good cause shown, admit any person to bail before conviction.' Section 6 of Chapter 79, Acts of the Legislature, 1882, provides: '* * * But a circuit court, or a judge thereof in vacation, may, for good cause shown, admit any person to bail before conviction, and may by order direct the clerk of the circuit court of the county in which the offense is charged to have been committed, to take the bond with good security in such a sum as the court or judge may fix in said order.' No further amendment to the statute in respect to the granting of bail was made until by Section 6 of Chapter 81, Acts of the Legislature, 1915, the statute was amended to read as follows: '* * * But a circuit court, or supreme Court of appeals, or a judge of either of said courts, in vacation, may, for good cause shown, admit any person to bail before conviction, or after conviction, except a conviction for offenses where the penalty is confinement in the penitentiary for life, or death, or during the suspension of the execution of the judgment of conviction or pending an appeal or writ of error, and may, by order, direct the clerk of the circuit court of the county in which the offense is charged to have been committed to take the bond with good security in such a sum as the court or judge may fix in said order * * *.'

By Chapter 38, Acts of the Legislature, 1935, amending and reenacting Section 6, Article 1, Chapter 62 of the Code of 1931, it is provided that: 'But a circuit, intermediate or criminal court, or the supreme court of appeals, or a judge of either of said courts in vacation, May, for good cause shown, admit any person to bail before...