State v. McIntosh
| Decision Date | 10 May 1918 |
| Citation | 96 S.E. 79,82 W.Va. 483 |
| Parties | STATE v. MCINTOSH. |
| Court | West Virginia Supreme Court |
Submitted May 7, 1918.
Syllabus by the Court.
Pendency of one indictment does not preclude right in the state to cause another to be found for the same offense.
A plea by a person charged with the same offense in two successive indictments, setting up, as matter of abatement, continuances of the first indictment after the finding of the second which, under the provisions of section 25 of chapter 159 of the Code 1913 (sec. 5601), would entitle him to a discharge from prosecution for the offense, if the latter had not been returned, and making no disclosure of the proceedings on the second indictment, is insufficient for lack of certainty and definiteness.
An essential averment of such a plea is the occurrence of enough unexcused continuances of both indictments, after the finding of the second, to make, when added to any of the first that may have occurred before the finding of the second, the requisite number.
In the case of two such indictments, the accused is not entitled to count under said statute any term at which he procured a continuance of either indictment on his own motion, or otherwise prevented a trial thereof.
Ordinarily a plea in abatement must set forth, with strictness and precision, such matter as will necessarily prevent further procedure in the case, if found to be true in point of fact.
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. F. 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. 5601), 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, 1916, 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...
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