State v. Charles L. McIntosh.
| Decision Date | 10 May 1918 |
| Citation | 82 W.Va. 483 |
| Parties | State v. Charles L. McIntosh. |
| Court | West Virginia Supreme Court |
Pendency of one indictment does not preclude right in the state to cause another to be found for the same offense. (p. 484),
A plea by a person charged with the same offense in two successive indictments, setting up, as matter of abatement, continuances of the first indictment after the finding of the second, which, under the provisions of sec, 25 of ch. 159 of the Code, would entitle him to a discharge from prosecution for the offense, if the latter had not been returned, and making no disclosure of the proceedings on the second indictment, is insufficient for lack of certainty and definiteness. (p. 484).
An essential averment of such a plea is the occurrence of enough unexcused continuances of both indictments, after the finding of the second, to make, when added to any of the first, that may have occurred before the finding of the second, the requisite number. (p. 484).
In the case of two such indictments, the accused is not entitled to count under said statute, any term at which he procured a continuance of either indictment on his own motion, or otherwise prevented a trial thereof. (p. 484).
Ordinarily, a plea in abatement must set forth, with strictness and precision, such matter as will necessarily prevent further procedure in the case, if found to be true in point of fact. (p. 485).
Case Certified from Circuit Court. Jackson County.
Charles L. McIntosh was indicted for larceny and embezzlement, Demurrers to special pleas sustained, and order certified.
Affirmed and remanded.
W. F. Boggess, Prosecuting Attorney, J. L. Wolfe, and E. T. England, Attorney General, and Henry Nolle, Assistant Attorney General, for the State.
Elmer Stone, Charles E. Hogg, and Walter Pendleton, for defendant.
poffenbarger, president:
The order under review on a certificate of the trial cour sustains demurrers to three special pleas founded upon sec 25 of ch. 159 of the Code, discharging persons held unde indictments for offenses, for failure to accord them trial with j in the reasonable time prescribed thereby, agreeably to th constitutional provision guaranteeing prompt trial in crimj inal cases.
These pleas were interposed to an indictment for larcen and embezzelment found, May 2, 1916, offenses charged, th pleas aver, in a previous indictment of the accused, foun Nov. 2, 1915, and still pending. There is no averment c lack of an opportunity for trial of the indictment last found within the time prescribed by the statute, but failure to accord a prompt trial of the one found in Nov. 1915 an identity of the person and the charges in the two indic ments are averred, and the argument submitted in resistanc of the demurrers proceeds upon the theory of an indictmen for an offense as to which there has been a virtual acquitta by reason of the identity of the offense and failure to brir the accused to trial on the older indictment, within the time prescribed.
As only one regular term intervened between the finding of the two indictments, there could have been no right to discharge at the date of the finding of the second and the pleas do not claim it, wherefore there has been no indictme: for an offense of which the accused had been previously a quitted either in law or fact. The mere pendency of o: indictment did not preclude right to find another for t same offense. Gibson's Case, 2 Va, Cas. 111; Stuart v. Con 28 Gratt. 950.
As to what the procedure on the new indictment has bee the pleas are silent. It may have been regularly continued the request of the accused from the date of the finding thereof down to the date of the filing of the pleas, and, if so, he cannot be heard to complain of the delay in his trial. Assuming identity of the offense charged in the two indictments, averred by the pleas, the mere failure of the state to demand
: a trial on the first in view of his continuances of the second, for cause shown, if such continuances occurred, as they may have, he cannot be deemed to have been held,...
To continue reading
Request your trial
-
State ex rel. Farley v. Kramer
... ... McIntosh, 82 W.Va. 483, pt. 4 syl., 96 S.E. 79. In any event, the 'term at which the indictment is returned is not to be counted in favor of the discharge of ... ...
-
State v. Loveless
... ... 812] Charles Edward Ford and Albert K. Puckett. Sarah Reed, an employee of Beatty, was the only person in the rooms when broken into by those who committed the ... See State v. McIntosh, 82 W.Va. 483, 96 S.E. 79; State v. Strauder, 11 W.Va. 745, 27 Am.Rep.[142 W.Va. 820] 606; Commonwealth v. Adcock, 8 Gratt. 661, 49 Va. 661 ... ...
-
State ex rel. Smith v. De Berry
... ... 539] S.E.2d 910; State v. Underwood, 130 W.Va. 166, 43 S.E.2d 61; Dillon v. Tanner, 107 W.Va. 550, 149 S.E. 608; State v. McIntosh, 82 W.Va. 483, 96 S.E. 79; Ex parte Bracey, 82 W.Va. 69, 95 S.E. 593; Ex parte Anderson, 81 W.Va. 171, 94 S.E. 31; Denham v. Robinson, Judge, 72 ... ...
-
State ex rel. Erlewine v. Thompson
... ... See State ex rel. Spadafore v. Fox, W.Va., 186 S.E.2d 833 (1972); State v. McIntosh, 82 W.Va. 483, 96 S.E. 79 (1918). But compare, State ex rel. Parsons v. Cuppett, Supra; Ex parte Bracey, Supra. In view of the constitutional ... ...