State v. George
| Decision Date | 01 October 1935 |
| Docket Number | 8186. |
| Citation | 181 S.E. 713,116 W.Va. 465 |
| Parties | STATE v. GEORGE et al. |
| Court | West Virginia Supreme Court |
Submitted September 10, 1935.
Syllabus by the Court.
1. Money taken by the arresting officers from the person of one against whom indictments for felony are pending and in the possession of the superintendent of the department of public safety is in custodia legis, and the service upon such officer of a notice of execution lien is without effect.
2. The superintendent of the department of public safety, in possession of money taken by arresting officers from the person of one against whom felony indictments are pending is, respecting such money, subject to the orders of the court wherein the indictments against the accused are pending.
3. A petition for the return of money taken by arresting officers from the person of one under indictment for felony and assigned by the accused to a third person, may be maintained in the name of the accused.
Error to Circuit Court, Marion County.
Petition by Drexel R. George, defendant in a prosecution for embezzlement, to require P. D. Shingleton, Superintendent of the Department of Public Safety, and another to show cause why certain money should not be delivered to petitioner or to his assignee. To review an order overruling demurrers to the petition, sustaining demurrers to the answers, and directing the return of the money in question to petitioner respondents bring error.
Affirmed.
Homer A. Holt, Atty. Gen., J. F. Bouchelle, Asst. Atty. Gen., and Walter R. Haggerty, Pros. Atty., and Harrison Conaway, Asst Pros. Atty., both of Fairmont, for plaintiffs in error.
L. T Eddy, M. E. Morgan, and H. R. Cronin, all of Fairmont, for defendant in error George.
On December 22, 1934, Drexel R. George filed a petition in the criminal court of Marion county alleging that on the first day of November, 1934, he was arrested in the city of St. Louis, Mo., and returned to West Virginia to answer certain indictments pending in the criminal court of Marion county charging him with embezzlement; that he was returned to Marion county and committed to jail to await trial; that at the time of his arrest, the sum of $1,044 in currency was removed from his person by the arresting officers, and that it is now in the possession of P. D. Shingleton, superintendent of the department of public safety; that the petitioner has made demand for its return, which was refused, as petitioner is advised, pursuant to the advice of the Attorney General of West Virginia and the prosecuting attorney of Marion county. The petition further alleges that the money so taken from the petitioner was his personal funds and has no connection whatever with any of the indictments pending against the petitioner, but that it was obtained by petitioner by means of loans upon certain policies of insurance and upon his automobile. The petition alleges in detail the amounts of the policies, the companies from which the money was borrowed and the exact amount borrowed from each, as well as the approximate dates upon which it was borrowed by the petitioner. The allegations concerning the money borrowed by petitioner on his automobile are no less specific. The petition goes on to allege that the money was borrowed by the petitioner preparatory to his return to West Virginia to face the charges there pending against him, and for the purpose of assisting in the financing of his defense to those charges. It further alleges that the money taken from petitioner was not the fruit of the crimes charged against the petitioner, or any of them, and that it has no evidential value and would not be a part of any evidence to be used at the trial of any of the charges pending against him. It is further alleged that, by assignment in writing entered into by petitioner on the 3d day of December, 1934, the money taken from the petitioner was assigned to Harry R. Cronin to apply upon attorney fees in connection with petitioner's defense of the charges pending against him. The prayer of the petition is that P. D. Shingleton, superintendent of the department of public safety, and Walter R. Haggerty, prosecuting attorney of Marion county, be required to show cause why the money in question should not be delivered to petitioner or to his assignee.
Walter R. Haggerty and P. D. Shingleton filed separate demurrers and separate answers to the petition. The points of demurrer relied upon are to all intents and purposes the same in each instance, and will be dealt with hereinafter to the extent necessary to decide the points of error raised. The answers also are to all intents and purposes the same. They set forth upon information and belief that the money in question is the fruit of the embezzlement with which petitioner stands charged, and, further, that there are a large number of claimants of the funds, including the county court of Marion county against which the embezzlements charged against George were committed, and Blanch S. George, who had caused to be served upon P. D. Shingleton a notice of execution lien in the amount of $13,040.50. The answer of Shingleton states that the money is in his possession as charged.
Demurrers were filed to the answers, and, without taking proof, the trial court held upon the hearing that the demurrers to the petition were to be overruled, the demurrers to the answers were to be sustained, and "as to the matters of law and fact arising upon the said petition and answers thereto is of opinion to and doth hereby grant the prayer of the said petition." The order directs the return of the money to the petitioner. This writ of error is prosecuted to that order.
The nine assignments of error are argued in the brief of respondents under the following headings:
First, that the proceeding upon the petition is civil in its nature, and that, therefore, the criminal court of Marion county had no jurisdiction; second, that such matters could not be disposed of prior to the trial upon the indictments, and that consequently the trial court's order was premature; third, that the trial court had no jurisdiction over the superintendent of the department of public safety; fourth, that the petition shows the money not to have belonged to petitioner, and hence that it is demurrable; that the answer shows that the money was subject to numerous claims superior to the petitioner's title, or that of his assignee, the priorities of which could not be determined in a criminal proceeding; that the trial court should have directed, or permitted, an inter pleader to be filed by the respondents if they so desired; fifth, that an ex parte petition cannot institute a proper proceeding for the adjudication of conflicting claims to money; and that it was the duty and right of the arresting officers to remove the money from George's person; sixth, that the state has a prior lien upon the money for its costs incurred in and about the prosecution of the charges against George.
Dealing first with the third of these points to the effect that the criminal court of Marion county had no jurisdiction over the superintendent of the department of public safety with reference to the matters involved in the petition herein filed, we find that it is rested upon the provision of the West Virginia Constitution (article 6, § 35) to the effect that: "The State of West Virginia shall never be made defendant in any court of law or equity." It is to be remembered that this proceeding on petition is a part of, and is ancillary to, the proceedings upon the indictments pending against George in the criminal court of Marion county. It is neither an action at law or a suit in equity within the meaning of the constitutional provision quoted. Neither is the state of...
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