State v. Mooney and Friday.

• Decision Date: 07 September 1901
• Citation: 49 W.Va. 712
• Parties: State v. Mooney and Friday.
• Court: West Virginia Supreme Court

49 W.Va. 712

State

v.Mooney and Friday.

Supreme Court of Appeals of West Virginia.

Decided September 7, 1901.

1. Indictment for Felony Preliminary Examination.

Where an indictment for felony is found, the accused is not entitled to a preliminary examination before a justice before trial, (p. 713).

2. Former Decisions Approved.

The syllabi in State v. Shawn, 40 W. Va. 1, Landers v. Railroad Company, 46 W. Va. 492, and State v. Allen, 45 W. Va. 74, as to remarks of counsel to a jury, are re-affirmed.

Error to Circuit Court, Ohio County.

John Mooney and Frank Friday were convicted of murder, and bring error.

Affirmed.

W. W. Arnett, for plaintiffs in error

B. H. Freer, Atty. Gen., Alex Dulin and John A. Howard, for the State.

Brannon, President:

The evidence in this case is not certified; bnt it appears that James Hervey was shot and killed 1st of March, 1900, by a man whose face was covered with a red handkerchief. John Mooneyand Frank Friday were jointly indicted for the murder of Hervey, and were sentenced to death in the criminal court of Ohio County, and their sentence having been affirmed by the circuit court of that county, they have brought a writ of error in this Court. I do not think that I can improve upon the opinions delivered in those courts in the case, and I do not think it necessary to do more than insert the opinions of the judges of those courts delivered in the case. Judge T. J. Hugus of the criminal court filed the following opinion: "The prisoners, on being arraigned upon the indictment found against them, moved the court to send them before a justice for preliminary examination. This motion was refused, and that ruling is now assigned as a ground for a new trial. Their claim to a preliminary examination previous to trial seems to rest on a statute passed by the legislature of this State on the 3d day of April, 1873. This act provided: 'Before any persdn charged with a felony is tried before a circuit court, he shall be examined before the county court, unless he waives such examination by his assent entered of record.'

This act continued in force until the 23d day of December, 1875, on which day it was repealed by chapter 92 of the Acts of 1875. During its brief existence, it came before the Supreme Court for consideration in four cases, viz: Bushirk v. Judge Ward, 7 W. Va. 91; State v. Stewart, 7 W. Va. 731; State v. Abbot, 8 W. Va. 746, and State v, Strauder, 8 W. Va. 686.

In this last one, yet generally remembered in this county, the act in question saved Strauder from the gallows. Nothing, however, was decided in any of these cases tending to throw any light on the ruling under consideration, further than to show, as was decided in the Strauder case, that no one could be tried for a felony, while the act was in force, without a preliminary examination, if one was demanded.

The act providing for an examination before trial by the county court, did not in terms repeal any other statutory provision nor did it do so by implication. It simply provided for a special or additional examination, before trial, of all felonies. Such examination was to take place before the county court, then a recently created tribunal. Its repeal in two years after enactment put an end. to this special preliminary examination before the county court, and left the law as to examination, indictment and trial, as it was before the enactment, and substantially, if not identically, as it is now.

Not only has the statute providing for such preliminary examination been repealed, but the county court, which had exclusive jurisdiction to hold it, has been abolished. This, then, would seem to end, so far as that statute and the county court are concerned, all possible contention that a preliminary examination is a Legal prerequisite to a trial now.

And such a contention cannot be based upon our present statute, which is chapter 156 of the Code of 1891, relating to 'Arrest, Commitment and Bail.' This chapter is identical with chapter 156 of the Code of 1868, except that there is omitted from it section 19, permitting certain misdemeanors, like assault and battery, to be settled by the parties themselves, and not to be prosecuted to indictment and trial, when so settled. Chapter 156 of the Code was not repealed, expressly or by implication, by the Act of 1.873, providing for special examination by the county court. The arrest, commitment and bail, and examination before a justice, provided for in chapter 156 of the Code of 1868, continued in force during the existence of that special statute, as it had before and does to-day in the same chapter in the Code of 1891.

There is, then, certainly no law now requiring preliminary examination before trial.

On the other hand, however, there is express statutory authority for proceeding to indictment and trial without preliminary examination. This is very evident from the statutes in force now relating to the finding of indictments and to trial thereon. Section 1 of chapter 158 of the Code of 1891, in express terms, permits the finding of an indictment without an examination. Its last clause reads: 'And the indictment may in the first instance, whether the accused has been examined or committed by a justice or not.' Now the indictment having been found, the next step is to proceed to trial.

This is apparent from section 1 of chapter 159 of the Code of 1891, the first sentence of which reads: 'When an indictment is found in the circuit court of any county against a person for a felony, the accused, if in custody, or if he appear in discharge of his recognizance, or voluntarily, shall, unless good ground be shown for a continuance, be tried at the same term

These two provisions of section 1 of chapters 158 and 159 of the Code as read, seem to me to be conclusive against the claim that no trial Can occur until after preliminary examination. There was no error in refusing prisoner's motion for a preliminary examination.

1 have not referred to the Virginia case, because the Virginia statutes differ essentially from ours. Virginia has no statute Like the last clause; of section 1 of chapter 158, permitting an indictment to be found without an examination. That provision first; appears as Virginia law in the Code of West Virginia of 1868.

Complaint is also made of the invitation to the defendant Mooney to put on a mask. Thns is assigned as another ground for a new trial.

This is analagous, I think, to the case of asking a prisoner to stand up, or expose his person. Such requests he may comply with or not, as he may see fit. if he declines, or voluntarily complies, no error results from the question. Mooney might have been asked when testifying to put the mask on, and the simple interrogatory would not have been error. So I think in argument when in connection with the reference to the mask, counsel says: 'And I invite him to put it on, ' it was not going beyond the limits of permissible argument.

Objection is also made to certain statements during the argument, and the making of these statements is alleged as ground for a new trial. In Arnold v. Com., (Ky.) 55 S. W. 894, counsel used very much such argument as complained of in this case. In his opening the prosecuting attorney said: 'He did not desire to have any man's blood on his hands; asked the jury to perform their full duty lest some one else's blood might rest on their hands in case of a too lax administration of the law.' The court said it was eminently proper to call the jury's attention to the responsibilities resting upon them, and to the duties they, as members of a tribunal created by law to ascertain the facts from evidence, are required to perform. And in this case, coun-sel in closing his argument, 'Appealed to the jury for a substantial penalty in order to suppress lawlessness, repeating a conversation he had with a resident of another county in which he was told that in that county only two murders had been committed in fifty years, and that the men who had committed them were hung by the neck, and that this had the effect to completely stamp out the commission of murder in that county The repetition of this conversation by counsel was condemned by the court, but was held not to constitute reversible error.

This holding of the Kentucky court is much like the holdings of our own Court in Shawns Case, 40 W. Va. 1. Here counsel said to the jury: Tf you sentence him to the penitentiary for life, it won't be five years till he will be let out again to enter upon a new course of crime.'

Apropos of this remark and as a comment thereon, our Supreme Court says: 'The choice between two modes of punishment, in case the jury find the case to be murder in the first degree, is absolutely with the jury, and it is difficult to limit the considerations which shall govern a jury, if deducible from the nature of the crime and its perpetrator as manifested by the evidence

In view of the Kentucky decision and the observations of our own Supreme Court, it was not in my judgment error for counsel in argument to say: 'Let him off to murder some other James Hrvey; * * * * to turn loose on society some murderers like these; * * * * this is simply a case of murder with the death penalty; * * * * in behalf of Henry Hervey, speaking for him and the State, I demand of you a verdict of murder in the first degree.'here was evidence upon which these statements and appeals could be predicated.

Nor do I think it was error to allude to the pride, courage and manhood of the jurors, as counsel seemed to do in the use of the sentences: 'It is an evidence of the weakness of the men who were on the jury; * * * * it would be a reflection upon your strength of character.'hese allusions to the jurors are matters more of taste, or propriety than anything else. Nothing severer can be said of them, I think, than, that they may not have been in good taste.

Our Supreme Court further says in Shawn's Case, that 'Where a criminal trial is fair in other respects, a...