State v. Lowe

• Decision Date: 22 February 1927
• Docket Number: 5943-5943B
• Parties: STATE ex rel. PRESTO v. LOWE, Sheriff. STATE ex rel. SCREVA v. SAME. STATE ex rel. DI PASQUALE v. SAME.
• Court: West Virginia Supreme Court

137 S.E. 219

103 W.Va. 264

STATE ex rel. PRESTO v. LOWE, Sheriff.

STATE ex rel. SCREVA v. SAME. STATE ex rel. DI PASQUALE v. SAME.

Nos. 5943-5943B

Supreme Court of Appeals of West Virginia.

February 22, 1927

Submitted February 16, 1927.

Syllabus by the Court.

A judgment entered of record, remanding the petitioner after a hearing upon a writ of habeas corpus, which has not been reversed, is conclusive upon another application. Sections 9 and 10, c. 111, Code, applied.

Original petitions for habeas corpus by the State, on the relation of Joe Presto, Paul Screva and Ralph Di Pasquale, to be directed to Robert M. Lowe, Sheriff. Cases considered together. Writs dismissed, and petitioners remanded.

James R. Wilkin, of Wellsburg, for respondent.

HATCHER, P.

On January 6, 1927, Joe Presto was arrested upon a warrant issued by A. B. Collett, a justice of Brooke county. The warrant charged Presto with conspiracy to inflict bodily injury upon Nic Di Fabbio and other persons. The prisoner was committed to jail to answer the indictment.

Presto filed a petition in this court, praying for a writ of habeas corpus, on the ground that there was no legal evidence before the justice which warranted his commitment. The writ was awarded, and a return was made thereto by the sheriff of Brooke county. Among other matters in the return, are allegations that on January 22, 1927, the petitioner filed a petition before Hon. J. B. Somerville, judge of the circuit court of Brooke county, praying for a writ of habeas corpus against the respondent, as sheriff, that the writ was awarded by the said judge, a return made by respondent, evidence taken, and a full hearing had, and that the judge refused the prayer of the petitioner, dismissed the proceeding by a final order, and had the same entered of record. The return further alleges that the cause of action alleged in the petition before the circuit judge is practically the same as in this court, that the judgment of the circuit court has not been appealed from or set aside, and that the petitioner is therefore barred from maintaining his proceedings in this court. The sheriff files with his return a certified copy of the order entered in vacation of the circuit court of Brooke county, from which it appears that on January 22, 1927--

"came Robert M. Lowe, sheriff of Brooke county, in answer to applications for writs of habeas corpus, and also came Biagio Merandino, R. C. Wilkin, and Joseph S. Tosti, counsel for the petitioner for said writs, and the judge having heard the evidence in said matters, and the arguments of c...