State v. Mcintosh

• Decision Date: 10 May 1918
• Citation: 96 S.E. 79
• Court: West Virginia Supreme Court
• Parties: STATE. v. McINTOSH.

96 S.E. 79

STATE.

v.McINTOSH.

Supreme Court of Appeals of West Virginia.

May 10, 1918.

(Syllabus by the Court.)

Case Certified from Circuit Court, Jackson County.

Charles L. Mcintosh was indicted for larceny and embezzlement. Demurrers to special pleas sustained, and order certified. Order approved and affirmed, and affirmance certified to trial court

W. P. Boggess, Pros. Atty., of Hinton, J. L. Wolfe, of Ripley, and E. T. England, Atty. Gen., and Henry Nolte, Asst. Atty. Gen., for the State.

Elmer Stone, of Charleston, Charles E. Hogg, of Point Pleasant, and Walter Pendleton, of Spencer, for defendant.

POFFENBARGER, P. The order under review on a certificate of the trial court sustains demurrers to three special pleas founded upon section 25 of chapter 159 of the Code (sec. 5001), discharging persons held under indictments for offenses, for failure to accord them trial within the reasonable time prescribed thereby, agreeably to the constitutional provision guaranteeing prompt trial in criminal cases. These pleas were interposed to an indictment for larceny and embezzlement found May 2, 1910, offenses charged, the pleas aver, in a previous indictment of the accused found November 2, 1915, and still pending. There is no averment of lack of an opportunity for trial of the indictment last found, within the time prescribed by the statute, but failure to accord a prompt trial of the one found in November, 1915, and identity of the person and the charges in the two indictments are averred, and the argument submitted in resistance of the demurrers proceeds upon the theory of an indictment for an offense as to which there has been a virtual acquittal, by reason of the identity of the offense and failure to bring the accused to trial on the older indictment, within the time prescribed.

As only one regular term intervened between the findings of the two indictments, there could have been no right to a discharge at the date of the finding of the second, and the pleas do not claim it, wherefore there has been no indictment for an offense of which the accused had been previously acquitted either in law or fact. The mere pendency of one indictment did not preclude right to find another for the same offense. Gibson's Case, 2 Va. Cas. 111; Stuart v. Com., 28 Grat. 950.

As to what the procedure on the new indictment has been, the pleas are silent. It may have been regularly continued at the request of the accused from the date of the finding thereof down to the date of the filing of the pleas, and, if so, he cannot be heard to complain of the delay in his trial. Assuming identity of the offense charged in the two indictments, averred by the pleas, the mere failure of the state to demand a trial on the first in view of his continuances of the second, for cause shown, if such continuances occurred, as they may have, he cannot be deemed to have held under accusation...