State v. Burke
| Decision Date | 25 March 1947 |
| Docket Number | 9834. |
| Parties | STATE v. BURKE. |
| Court | West Virginia Supreme Court |
Rehearing Denied June 9, 1947.
Syllabus by the Court.
When an accused has been tried and convicted by a justice of the peace on a valid warrant and the judgment of conviction is vacated and annulled by an appeal taken by him to the criminal court of the county, and while such appeal is pending and before it is dismissed, he is indicted for the same offense and is tried and convicted in that court, the provision of the Constitution of this State, Article III Section 5, that no person, in any criminal case, shall be twice put in jeopardy of life or liberty for the same offense does not apply; and in such case the accused may not plead his conviction on the warrant in bar of the prosecution for the same offense in the trial on the indictment.
Guy H. Burnside, of Clarksburg, for plaintiff in error.
Ira J. Partlow, Atty. Gen., and Ralph M. Hiner and Eston B Stephenson, Asst. Attys. Gen., for defendant in error.
The defendant, Dennis J. Burke, was convicted upon the trial of an indictment for a misdemeanor in the Criminal Court of Harrison County, and sentenced to be confined in the county jail for a period of one year and to pay a fine of $200. The circuit court of that county having refused the petition of the defendant to review that judgment, he prosecutes this writ of error in this Court.
This proceeding grows out of the same transactions which gave rise to the indictment and the trial of the defendant in the case of State of West Virginia v. Taylor, 129 W.Va. ---- 42 S.E.2d 549, the opinion in which is announced contemporaneously with this opinion. Though there are some differences in the testimony in the two cases, consisting of additions and omissions, much of the evidence is identical. A brief statement of the proceedings and a recital of the material facts are, however, deemed proper in the decision of this case.
At the time of the occurrences upon which this prosecution is based, the defendant was the owner and the operator, and Tracy Taylor was the night clerk, of the K & H Hotel located at number 328 1/2 on the north side of West Pike Street, in the City of Clarksburg, in Harrison County. The hotel was conducted in the second and third stories of a three story brick building.
According to the evidence introduced by the State upon the trial of this case, an investigating officer, whose identity was then not known to the defendant, came to the hotel about eleven o'clock on the night of September 4, 1944, accompanied by a girl whom he had met for the first time thirty to forty-five minutes previously in a local lunch room. Upon entering the hotel he met the defendant and asked for the clerk. Tracy Taylor, the clerk, responded to the call of the defendant, and assigned them a bedroom for use for about thirty minutes. They had no baggage at the time. The clerk, who knew that they were not man and wife, took them to the room. In the hall, just outside room number six, the investigator purchased from the clerk, for twenty-five cents, a prophylactic package. The investigator and the girl remained in the room for approximately thirty minutes, after which they left the hotel. The girl was not summoned as a witness and did not testify at the trial. When the defendant called the clerk at the time the investigator first entered the hotel, the defendant went from the office toward a beer parlor which was opposite the office and on the same floor, and the investigator did not see him again that night.
After his visit to the hotel, the investigator obtained a search warrant, and on the night of September 9, 1944, he and three other police officers searched the premises. The clerk and the defendant were in the hotel when the raid took place between ten and ten-thirty o'clock, and both were placed under arrest. As a result of the search several unmarried couples, undressed or only partly dressed, were discovered in bed in some of the rooms. Loosely arranged registration cards were found at or near the desk at the hotel office. They were not indexed and some of them contained only surnames with no address, or fictitious names. The card for room number ten showed the registration of Merryman and wife. Some of the cards bore the initials of the defendant.
When the officers arrived the defendant was near the desk, and one of the officers told him that he had a search warrant for the premises and showed him the warrant. As the unmarried couples were brought by the officers from the rooms to the lobby of the hotel near the desk, in the presence of the defendant, they gave their names and stated that they were not married. The only baggage possessed by any of them was a package containing some whiskey, which belonged to one of the men who were arrested. A deputy sheriff testified that the reputation of the hotel in the community, as a place of prostitution, lewdness and assignation, was bad.
The testimony of the defendant was the only evidence offered in his behalf at the trial. He denied that he had knowingly permitted any person to be in the hotel for the purpose of prostitution, lewdness or assignation. He stated that he was the owner and the proprietor of the hotel and that he had operated it for twenty-two years. He admitted that he had permitted some of the couples, found in the rooms at the time of the raid, to register and that when they had registered he had placed his initials on the cards. He stated that as far as he knew the persons registered were man and wife. On cross-examination, however, he admitted that he permitted the couple found in bed in room number ten to register as Merryman and wife on September 9, 1944, without making any inquiry of them and with knowledge that they had no baggage. He also admitted that he knew that one of the women in one of the rooms was not the wife of the man whom he permitted to register and occupy the room, and that the woman with another man who registered that couple as man and wife was not his wife. He also testified that he permitted the night clerk to register men and women as man and wife until April following the raid in September, 1944. On cross-examination, he was asked if he knew, when he employed the clerk in 1938, that she had been indicted for a felony and had served a year in jail and he answered that he did. To this testimony, however, there was no objection or exception.
After the search of the hotel, the defendant was, on September 19, 1944, arraigned before a justice of the peace of Harrison County, and tried on a warrant which charged that he did knowingly and unlawfully keep, maintain and operate a designated place of prostitution in that county. He was convicted and sentenced to confinement in the county jail for a period of six months and to pay a fine of $100. He immediately appealed from that judgment to the Criminal Court of Harrison County and entered into a recognizance for his appearance on the first day of the next regular term of that court.
On March 7, 1945, an indictment, containing two counts, was returned against the defendant by a grand jury then attending the criminal court. On this indictment the defendant was tried, found guilty, and sentenced. On March 12, 1945, and before his trial on the indictment, which occurred on April 13, 1945, a demurrer and a motion of the defendant to quash the warrant were sustained by the court, but no order dismissing the appeal was entered at that time. Final judgment was rendered by the criminal court in the proceeding on the indictment, on April 25, 1945. Afterward, on May 15, 1945, upon the statement of the prosecuting attorney that he would not prosecute the defendant in his pending appeal from the judgment of the justice of the peace, and with the assent of the court, the appeal was dismissed and the defendant was discharged from the warrant.
When the case was called for trial, and while the appeal from the judgment of the justice of the peace on the warrant was pending, the defendant entered his demurrer and motion to quash the indictment. The demurrer and the motion to quash were overruled. The defendant then filed his plea of not guilty and a special plea of former jeopardy based upon his conviction by the justice of the peace on the warrant. The special plea alleged that the defendant in the warrant and the defendant in the indictment were the same person, that the offense charged in each was the same offense, and that the judgment of the justice of the peace remained in full force and effect. It contained no reference to the pendency in the criminal court of the appeal by the defendant from the judgment of the justice of the peace, or the action of the court in sustaining the demurrer of the defendant and his motion to quash the warrant on March 12, 1945. A special replication, filed by the prosecuting attorney, alleged that an appeal from the judgment had been taken by the defendant and that a nolle prosequi was entered to the warrant; that the case was dismissed; and that the defendant was discharged from the warrant at the March term, 1945, of the criminal court. The court rejected the special plea, and the case was tried before a jury upon the issue joined upon the plea of not guilty. The jury returned a verdict of guilty as charged in the indictment. On April 25, 1945, the court overruled the motion of the defendant to set aside the verdict and grant him a new trial and entered judgment on...
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