State v. Houchins
| Decision Date | 21 September 1926 |
| Docket Number | 5733. |
| Parties | STATE v. HOUCHINS. |
| Court | West Virginia Supreme Court |
Submitted September 14, 1926.
Syllabus by the Court.
The jurisdiction of the criminal court of Raleigh county to try an indictment for murder returned by a grand jury was not ousted by a writ of certiorari from the circuit court awarded without jurisdiction, to bring the case before it on rulings of the criminal court on a special plea filed by defendant, from consideration of which, for want of such jurisdiction, it was previously prohibited by a peremptory writ of this court, notwithstanding the circuit court had not, when the case was called for trial, recertified the same back to the criminal court.
A special plea not only tendered but actually filed by an order of court, though subsequently rejected or stricken out, and the ruling of the court thereon excepted to, thereby becomes a part of the record for the purpose of review by the appellate court on writ of error by the party adversely affected by the ruling of the lower court.
Upon an indictment for the number of one person, a plea of autrefois acquit, which with complete and accurate detail alleges that upon an indictment for the killing of another person committed at the same time he had been by the verdict and judgment of the same court previously adjudged not guilty thereof, and vouches the record of the former trial, and alleges that the killing of both persons, while it may have been the result of two shots fired at the same instant and in rapid succession, was but one act, with but a single volition, and when attacked by another with a deadly weapon, and solely in self-defense, and when he had reason to believe and did believe that he was in danger of death or great bodily harm at the hands of his assailant, presents a good defense of prior jeopardy and acquittal of the same offense, notwithstanding the two shots resulted accidentally in the death of two bystanders.
Error to Circuit Court, Raleigh County.
Emma Houchins was convicted of voluntary manslaughter, and she brings error. Reversed, and new trial awarded.
McGinnis & McGinnis and C. M. Ward, all of Beckley, for plaintiff in error.
Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.
Upon an indictment for the murder of Lewis Romans, returned by the grand jury in the criminal court of Raleigh county defendant, on her trial before the jury, was found guilty not of first degree murder, nor of second decree murder, but of voluntary manslaughter, as charged in the indictment, upon which verdict the criminal court, on November 13, 1925, adjudged that she be confined in the penitentiary for the period of five years.
Upon a writ of error to this judgment the circuit court of said county, as it appears from the record, was of opinion that there was no error in the judgment of the criminal court, but that it was plainly right, and by its judgment, pronounced on March 27, 1926, the same was affirmed, to which judgment we awarded the present writ of error.
In the criminal court, its jurisdiction to try the case was challenged by a special plea, with special replication of the State thereto, which plea, on issue joined thereon, was overruled, and the jurisdiction sustained. The correctness of this ruling of the trial court is the first proposition which we are called upon to consider. The proposition covered by this plea is that, at the time the defendant was put upon trial in the criminal court, the case was pending in the circuit court on certiorari by it to the criminal court, wherefore the trial court was without jurisdiction thereof for the purpose of the trial. This proposition, as the criminal court properly decided, was not well founded. In State v. Emma Houchins, 96 W.Va. 375, 123 S.E. 185, we decided that the criminal court was without jurisdiction to certify to us the correctness of its ruling on the plea of autrefois acquit, tendered by the defendant, and presently to be considered on the present writ of error, and that we were likewise without jurisdiction to consider or respond to the question certified; and we declined to do so. This decision was announced on May 6, 1924. Later, on December 22, 1924, upon the Petition of Ashworth, Prosecuting Attorney of Raleigh County, v. Hon. John H. Hatcher, Judge of the Circuit Court of Raleigh County, 98 W.Va. 323, 128 S.E. 93, we awarded a peremptory writ of prohibition, prohibiting the respondent from further considering the case upon the writ of certiorari awarded, holding that the circuit court was wholly without jurisdiction by certiorari to remove a case pending before an inferior tribunal for the sole purpose of reviewing the latter's ruling on demurrer to pleadings, and that we had jurisdiction to restrain the circuit court, as was done, by writ of prohibition.
The trial of the case was begun and continued in the criminal court on November 11, 1925, subsequently to the rulings and decisions given here in the two cases referred to. Therefore, we conclude on the facts appearing in the record that, as the circuit court was wholly without jurisdiction to bring before it by certiorari the ruling of the criminal court as proposed, the case was never in fact or law pending in the circuit court on said writ, nor the jurisdiction of the criminal court to try the case ousted by the certiorari proceedings. For these reasons we negative the point of want of jurisdiction.
The next proposition relied on for reversal is that the court below-the trial court-erred in rejecting defendant's special plea of autrefois acquit, the question which the criminal court without jurisdiction attempted to certify to us, already alluded to. The attorney general denies our jurisdiction to consider the questions covered by the several bills of exceptions certified in the record, upon the general ground that these bills of exceptions were not made up and signed within the time required by law by the judge of the trial court, wherefore they cannot be considered upon this hearing. As the record discloses, the trial in the criminal court took place before Hon. A. D. Preston, judge of that court. The several bills of exceptions, including No. 6, covering said special plea of autrefois acquit, were signed, not by Judge Preston, the regular judge, but by Hon. M. L. Painter, special judge of said court. Wherefore, it is contended by the attorney general, we cannot consider any of the questions presented by said bills of exceptions.
We find it unnecessary, however, to respond to this general comprehensive proposition, for in our judgment the sufficiency of this plea of autrefois acquit is fairly presented by the record independently of the bills of exceptions purporting to embody it, and that the judgment of the lower court must be reversed for error committed in rejecting it. The record shows by an order of the criminal court, entered on January 28, 1924, on which day Judge Preston, the regular judge of the court, was sitting, that the defendant not only tendered the plea in question, but that it was in fact filed, and marked for identification, "State of West Virginia v. Emma Houchins, Special Plea No. 1;" and that upon the State's demurrer thereto, the demurrer was sustained, and that defendant excepted. While this plea, by an endorsement on the back of it, appears to have been again filed on November 11, 1925, we think it is sufficiently identified by the record and by its subject matter to make it a part of the record, without any formal bill of exceptions. While the order of November 11, 1925, the date on which the trial began, simply recites a tender of the plea and its rejection, manifestly it was overlooked that the plea had previously been tendered and filed, and the ruling of the court on the demurrer thereto excepted to. We think that the defendant is entitled to the benefit of the prior record, if not the subsequent record and the bill of exceptions signed by the special judge; for we decided in National Valley Bank v. Houston, 66 W.Va. 336, 66 S.E. 465, reviewing prior cases, that while an order rejecting a special plea tendered will not make the plea a part of the record for review on appellate process, nevertheless an order showing not only a tender but the filing of the plea, and the subsequent rejection thereof, and exception to the ruling, does make the plea a part of the record, and which may be considered on writ of error without a more formal bill of exceptions specifically making the plea a part of the record.
The record, therefore, we think is sufficient to bring before us the question of the sufficiency of said special plea of autrefois acquit, and the correctness or incorrectness of the ruling of the trial court in rejecting it on demurrer or motion. Omitting all formal parts, the substance of this plea is that on the same day and by the same grand jury that returned the present indictment charging the defendant with the murder of Lewis Romans, to-wit, on the 13th day of October, 1923, another indictment was returned against her for the murder of Emma Carter, on which latter indictment she was, on November 5, 1923, set to the bar of the court, and upon the reading of the indictment to her, she interposed her plea of not guilty, on which plea the State joined issue; and that subsequently, to wit, on November 14, 1923, she was put upon her trial for the alleged offense, before a jury of twelve men returned, impaneled and sworn as provided by law to well and truly try the issue joined upon said indictment and plea, and that hearing all the evidence introduced on behalf of the State and on her behalf, and the instructions of the court, the jury returned, and on November 15, 1923, returned...
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