State v. Crawford

Citation98 S.E. 615,83 W.Va. 556
Decision Date04 March 1919
Docket Number3264.
CourtWest Virginia Supreme Court

Submitted February 25, 1919.

Syllabus by the Court.

Under section 25 of chapter 159 of the Code 1913 (sec. 5601), the third unexcused term after the one at which an indictment for a felony was found is countable for the accused on his motion for a discharge from prosecution, notwithstanding lack of termination thereof at the date of the entry of a nolle prosequi setting him at liberty.

One in whom such right has so vested is entitled to a discharge from prosecution on a second indictment for the same offense returned several years after the vesting thereof; such dismissal and reindictment being in contravention of the spirit and purpose of the statute.

If, in such case, the motion of the accused, for his discharge fully sustained by the record and evidence adduced, has been overruled, and he put upon trial and convicted, the judgment will be reversed, and the verdict set aside, on a writ of error, and the appellate court, rendering such judgment as the trial court should have rendered, will sustain the motion and forever discharge the accused from prosecution for the offense so charged.

Additional Syllabus by Editorial Staff.

Statutes must be so construed as to effectuate, and not to defeat, the legislative intent.

A nolle prosequi does not preclude a reindictment.

By dismissal before right of discharge vested under Code 1913 c. 159, § 25 (sec. 5601), upon expiration of third unexcused term without prosecution, the state may always save its right to prosecute on a new indictment.

Error to Circuit Court, Mingo County.

James Crawford was convicted of voluntary manslaughter, his motions for new trial and for a discharge were overruled, and he brings error. Reversed, and defendant discharged.

Goodykoontz & Scherr, of Williamson, and Marcum & Marcum, of Huntington, for plaintiff in error.

E. T. England, Atty. Gen., Henry A. Nolte, Asst. Atty. Gen., and B. Randolph Bias, of Williamson, for the State.


If the defense underlying the first assignment of error on this writ is well founded and fully established, there will be no occasion for consideration of any of the others. On a second indictment charging the murder alleged in the first, the accused moved the court for a discharge on the ground of detention without trial, under the former indictment, for such a period of time as confers right of discharge from the offense. The court having overruled his motion, he entered a plea of not guilty and was convicted of voluntary manslaughter. After having unsuccessfully moved for a new trial, he renewed his motion for discharge, which the court overruled, and sentenced him to confinement in the penitentiary for a period of three years.

The identity of the offenses charged in the two indictments is not questioned. Each of them charges James Crawford with the murder of Lewis Rutherford, and the identities of these persons and the homicide averred, respectively, are proved by the oath of the prosecuting attorney. They differ only as to the date of the homicide, but the allegation thereof is an immaterial one.

The motion is founded upon section 25 of chapter 159 of the Code (sec. 5601), reading as follows:

"Every person charged with felony, and remanded to a circuit court for trial, shall be forever discharged from prosecution for the offence, if there be three regular terms of such court, after the indictment is found against him, without a trial, unless the failure to try him was caused by his insanity; or by the witnesses for the state being enticed or kept away, or prevented from attending by sickness or inevitable accident; or by a continuance granted on the motion of the accused; or by reason of his escaping from jail, or failing to appear according to his recognizance, or of the inability of the jury to agree in their verdict."

Before the end of the third term of the criminal court of Mingo county after the one at which the first indictment was found, a nolle prosequi was entered, and the principal inquiry is whether that term can be counted in favor of the accused; continuances having occurred on the motion of the state at the other two terms. That indictment was found at the January term, 1911. In that term there was a continuance on the motion of the accused until April 11, 1911. At the April and July terms, 1911, there were continuances of the case on motions of the state. At the next term, the third after the date of the indictment, the nolle prosequi was entered. At the January term, 1916, the new indictment was returned. On the motion for discharge the accused proved his readiness for trial at the April, July, and October terms. Presumptively the state was unable to prove facts applying the exceptions prescribed by the statute relied upon, so as to deprive the accused of the benefit of any of the terms, for it made no effort to do so. It merely denies his right to count the October term, 1911, because he was not held for trial until it ended.

Whether such a term is to be counted seems never to have been a subject of inquiry in this court or any reported Virginia decision. Upon the legal fiction that a term of court is a single day, the first day thereof, and the tendency of the interpretation urged by the accused to defeat the ends of justice and work a perversion of the statute, it was held in Bell's Case, 7 Grat. (Va.) 646, 8 Grat. (Va.) 600, that a person remanded for indictment and trial was not entitled to the benefit of the term in which he was remanded. It had occurred and become complete and full before the remand took place. Besides, a person...

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2 cases
  • State v. Latil, 42777
    • United States
    • Louisiana Supreme Court
    • May 7, 1956 a complete bar to a subsequent prosecution for the same offense. State v. Anderson, 51 La.Ann. 1181, 25 So. 990; State v. Crawford, 83 W.Va. 556, 98 S.E. 615; State v. Soucie, 234 Ind. 98, 123 N.E.2d 888; State v. Porter, Mont., 300 P.2d 952; 15 Am.Jur. 45, Section 367; note to In re Beg......
  • Ex parte Warrenburg
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • November 5, 1937
    ... ... Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., ... and Ellis W. Eddy, Co. Atty., of Medford, for the State ...          BAREFOOT, ...          The ... defendant, Claude Warrenburg, is confined in the county jail ... of Grant county, ... 336, 37 P. 669; ... State v. Deloria, 129 Wash. 497, 225 P. 405; ... State v. Silver, 152 Wash. 686, 279 P. 82; State ... v. Crawford, 83 W.Va. 556, 98 S.E. 615; State v ... Garthwaite, 23 N.J.L. 143; People v. Henwood, ... 65 Colo. 566, 179 P. 874 ... [73 P.2d 481.] ... ...

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