State v. Holesapple

• Decision Date: 22 January 1935
• Docket Number: C. C. 521.
• Parties: STATE v. HOLESAPPLE.
• Court: West Virginia Supreme Court

178 S.E. 280

116 W.Va. 19

STATE v. HOLESAPPLE.

C. C. No. 521.

Supreme Court of Appeals of West Virginia.

January 22, 1935

Submitted January 15, 1935.

Syllabus by the Court.

Where there has been an adjudication which disposes of a pleading upon proof, this court has no jurisdiction to review the sufficiency of the pleading therein on certificate, under Code 1931, 58-5-2.

Case certified from Circuit Court, Kanawha County.

Webb Holesapple was arraigned on a charge of larceny. A demurrer to defendant's special plea was overruled and the ruling certified for review.

Proceeding dismissed.

Homer A. Holt, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen for the State.

M. F Matheny, of Charleston, for defendant.

WOODS Judge.

Webb Holesapple, upon arraignment before the intermediate court of Kanawha county, on a charge of the larceny of two diamond bracelets of the value of $14,000, tendered and filed a special plea, in which he set up a former acquittal in the circuit court of Greenbrier county of the alleged offense, as evidenced by a certified copy of the latter court's final order, incorporated in said plea. A demurrer to the special plea was overruled. Thereupon the state, according to the order of the intermediate court, filed its replication to said plea and said court "after hearing argument of counsel upon said special plea and upon said replication," found "that the defendant, Webb Holesapple, should not be further prosecuted * * * upon the indictment now pending against him for the reason that he was formerly acquitted for the same offense in the circuit court of Greenbrier county, it having been stipulated * * * that the property alleged to have been stolen in each indictment is one and the same property." This order recited further that, at the state's request, the correctness of the court's rulings on the demurrer to the special plea and "its decision in finding for the defendant on said plea" were thereby certified to the circuit court. The latter, after affirming the action of the intermediate court certified the questions to this court.

Is this matter reviewable on certificate? It will be noted that the proceeding did not stop with the overruling of the demurrer to the special plea. The state filed a special replication certain facts were stipulated, and the court, after hearing counsel thereon, made a specific finding that the defendant had been formerly acquitted in ...