State v. Legg

• Decision Date: 24 February 1967
• Docket Number: No. 12567,12567
• Citation: 151 W.Va. 401,151 S.E.2d 215
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Willard B. LEGG.

Page 215

151 S.E.2d 215

151 W.Va. 401

STATE of West Virginia v. Willard B. LEGG.

No. 12567.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 11, 1966.

Decided Nov. 22, 1966.

Rehearing Denied Feb. 24, 1967.

Syllabus by the Court

1. The provision in Code, 1931, 58--5--4, as amended, that in criminal cases no petition for appeal or writ of error shall be presented unless a notice of intent to file such petition, fairly stating the grounds of the petition, shall have been filed with the clerk of the court in which the judgment or order was entered, within sixty days after such judgment or order was entered, is mandatory and jurisdictional.

2. In any criminal case in which a writ of error has been granted upon the petition of one who has been convicted of and sentenced for a criminal offense, the writ of error will be dismissed as having been improvidently awarded if it appears that he has failed to comply with the provisions of Code, 1931, 58--5--4, as amended, requiring a filing with the clerk of the trial court of a notice of intent to file such petition for a writ of error.

Eugene T. Hague, Charles H. Rudolph, Jr., Parkersburg, for plaintiff in error.

C. Donald Robertson, Atty. Gen., Leo Catsonis, Asst. Atty. Gen., Charleston, for defendant in error.

CALHOUN, Judge.

This case is before the Court on a writ of error to the final judgment of the Circuit Court of Wirt County. Willard B. Legg, the appellant, was convicted by the jury in a trial upon an indictment which charged him with the larceny of United States currency of the value of $64.32 of the money, goods, effects and property of the Board of Education of Wirt County.

At the time the offense is alleged to have been committed, Willard B. Legg was employed by the Board of Education of Wirt County as a teacher and as assistant principal of Wirt County High School. He was also employed by the board of education, pursuant to a 'homebound teaching' program, to teach certain high school subjects to Linda Lou Brohard at her home in Wirt County after regular school hours. Linda Lou Brohard was unable to attend high school because she was afflicted with muscular dystrophy.

The appellant was convicted on the basis of evidence introduced at the trial to prove that he received compensation in the sum of $64.32 from the board of education as a consequence of his representation that he taught Linda Lou Brohard at her home during the month of March, 1962, when, as a matter of fact, such representation was wholly false.

Code, 1931, 61--3--24, provides that if any person '* * * obtain from another, by any false pretense, token or representation, with intent to defraud, money, goods or other property which may be the subject of larceny * * * he shall * * * be deemed guilty of larceny; * * * and, upon conviction, shall be confined in the penitentiary not less than one nor more than five years, * * *.' The sentence imposed upon the appellant by the Circuit Court of Wirt County on October, 7, 1965, was an indeterminate sentence of one to five years pursuant to the statute quoted above. The sentence of one to five years is a proper sentence in such circumstances, notwithstanding the fact that it is provided by Code, 1931, 61--3--13, as amended, that one convicted of grand larceny 'shall * * * be confined in the penitentiary not less than one nor more than ten years; * * *.' State v. Martin, 103 W.Va. 446, 137 S.E. 885; State v. Grove, 74 W.Va. 702, pt. 2 syl., 82 S.E. 1019.

After a writ of error was granted and after the case had been placed on the docket for argument, the State of West Virginia, by counsel, pursuant to Rule IX of the rules of this Court, filed in the office of the clerk of this Court on September 12, 1966, a motion to dismiss the 'writ of error and appeal' as having been improvidently awarded, by reason of the failure of the appellant to comply with the provisions of Code, 1931, 58--5--4, as last amended by Chapter 9, Acts of the Legislature, Regular Session, 1965. The statute in question is quoted immediately below, the second paragraph, added by the 1965 amendment, being the precise portion of the statute upon which the motion is based:

'No petition shall be presented for an appeal from, or writ of error or supersedeas to, any judgment, decree or order, whether the state be a party thereto or not, which shall have been rendered or made more than eight months before such petition is presented.

'In criminal cases no petition for appeal or writ of error shall be presented unless a notice of intent to file such petition shall have been filed with the clerk of the court in which the judgment or order was entered within sixty days after such judgment or order was entered. The notice shall fairly state the grounds for the petition without restricting the right to assign additional grounds in the petition.'

Counsel for the appellant filed an 'answer' to the motion asserting: (1) That the provisions of the statute are not jurisdictional; and (2) that even if such provisions are jurisdictional, the appellant has substantially complied with them. Questions arising upon the motion were submitted to the Court upon written briefs and oral arguments of counsel at the same time the case was argued orally and submitted for decision upon its merits.

The appellate jurisdiction of this court in criminal cases is conferred by Article VIII, Section 3 of the Constitution of West Virginia in the following language: '* * * It shall have appellate jurisdiction in criminal cases where there has been a conviction for felony or misdemeanor in a circuit court, and where a conviction has been had in any inferior court and been affirmed in a circuit court, * * *, and such other appellate jurisdiction, in both civil and criminal cases, as may be prescribed by law.'

The Constitution does not define the procedure for appeal from a circuit court to this Court. The authority to do so has been left to the legislature. 4 C.J.S. Appeal and Error § 8, page 73. The procedure, as prescribed by the legislature, is defined in Article 5 of Chapter 58, Code, 1931, as amended. Section 1 enumerates the types of cases in which one may obtain from this Court, or from a judge thereof in vacation, an appeal from, or a writ of error or supersedeas to, a judgment, decree or order of a circuit court. Section 3 provides for the presentation of a petition, assigning errors, in this Court by a person wishing to obtain a writ of error, appeal or supersedeas in the cases enumerated in the first section. Then follows Section 4 which, as amended and reenacted in 1965, has been quoted previously in this opinion.

One convicted of a criminal offense is not entitled to a writ of error as a matter of right. The Constitution and statutes create an absolute right merely to apply for a writ of error. Constitution, Article VIII, Section 6; Linger v. Jennings, 143 W.Va. 57, 99 S.E.2d 740. It has been held in a civil case that 'An appeal was unknown to the common law.' Wingfield v. Neal, 60 W.Va. 106, pt. 1 syl., 54 S.E. 47, 10 L.R.A., N.S., 443. The third point of the syllabus in Fleshman v. McWhorter, 54 W.Va. 161, 46 S.E. 116, is as follows: 'There is no absolute right in a suitor to have a decision against him reviewed, which must be respected in making laws; and, in the absence of a constitutional inhibition, it is within the power of the Legislature to prescribe the cases and the courts in which parties shall be entitled to appellate remedies.' 'The right of appeal or review is not essential to due process, provided due process has already been accorded in the tribunal of first instance. * * *.' 16 Am.Jur.2d, Constitutional Law, Section 584, page 989. See also State ex rel. Burchett v. Taylor, 150 W.Va. 702, ---, 149 S.E.2d 234, 236; 4 Am.Jur.2d, Appeal and Error, Section 1, page 533; 1 M.J., Appeal and Error, Section 24, page 506. 'A right of review in criminal cases by an appellate court is not a necessary element of due process of law, and it is wholly within the discretion of each state to refuse it or to grant it on terms, provided it does not deny an appeal to certain persons while granting it to other persons similarly situated. * * *.' 16A C.J.S. Constitutional Law § 594, page 688. 'In general, the right of review in a criminal case pertains merely to the remedy and is not a natural, inherent, or vested right. * * *. In order to obtain a review of a judgment of conviction, accused must resort to the remedies given either by the common law or by statute, and must comply with the procedural requirements prescribed by statute.' 24 C.J.S. Criminal Law § 1626, pages 938--939. In McCue v. Commonwealth, 103 Va. 870, 49 S.E. 623, the court held that in a criminal case a review by an appellate court is 'no part of 'due process of law."

'Appellate jurisdiction is derived from the constitutional or statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed.' 4 Am.Jur.2d, Appeal and Error, Section 4, page 535. To the same effect, see State v. Shumate, 48 W.Va. 359, 37 S.E. 618. The legislature has enacted various statutes to prescribe procedure for appeal to this Court. The amendatory language here in question was made a part of the statute which prescribes a maximum period of eight months for appeals to this Court from circuit courts. Identical amendatory language was inserted by the legislature at the same session in Code, 1931, 58--4--4, as amended, which prescribes a maximum period of four months for appeals to circuit courts from courts of limited jurisdiction. See Chapter 9, Acts of the Legislature, Regular Session, 1965. The eight months appeal period in one statute and the four months appeal...