State v. Tate

• Citation: 22 S.E.2d 868,125 W.Va. 38
• Decision Date: 10 November 1942
• Docket Number: 9377.
• Parties: STATE v. TATE.
• Court: Supreme Court of West Virginia

22 S.E.2d 868

125 W.Va. 38

STATE v. TATE.

No. 9377.

Supreme Court of Appeals of West Virginia.

November 10, 1942

Rehearing Denied Dec. 15, 1942.

Syllabus by the Court.

J Leonard Baer, of Beckley, for plaintiff in error.

William S. Wysong, Atty. Gen., and Kenneth E. Hines, Asst. Atty Gen., for defendant in error.

ROSE Judge.

This case is before us upon a writ of error and supersedeas to the order of the Circuit Court of Raleigh County, refusing a writ of error to the judgment of the criminal court of that county, by which the latter court had sentenced the plaintiff in error to the penitentiary for life upon the verdict of a jury finding him guilty of murder in the first degree with the recommendation that he be punished by confinement in the penitentiary.

After the maturity of the case for hearing in this court, the State filed a motion in writing to dismiss the writ of error and supersedeas on the ground that the court has no jurisdiction of the case for the following reasons: (1) That "no order was, or has been, made or entered in the Criminal Court of Raleigh County identifying purported bills of exceptions Nos. 1, 2, 3 and 4 and making said bills of exceptions a part of the record, as required by Section 35 Article 6, Chapter 56 of the Code of West Virginia"; and (2) "that said purported bill of exceptions No. 1" (which contains the part of the evidence which has been preserved) "was not presented to and signed by the trial judge within sixty days after the adjournment of the January Term 1942 of the Criminal Court of Raleigh County (at which term the defendant was convicted and sentenced), as required by order of said Criminal Court entered on January 31, 1942 made pursuant to the statutory provision aforesaid."

In support of this motion there was filed a certified copy of an order of the criminal court showing its adjournment for the January term on February 19, 1942. Bill of exceptions No. 1 is dated March 13, 1942; bills of exceptions Nos. 3 and 4 March 16, 1942; and the bill of exceptions (not numbered, but sometimes called No. 2, and sometimes "No. 1, certificate of evidence"), containing the preserved parts of the evidence, bears date May 11, 1942. The record as printed shows no order making any of these four bills of exceptions a part of the court record. Counsel for the plaintiff in error admits this defect, but says in his "answer" to the motion that orders for that purpose were actually prepared and submitted by him for entry, and that bills of exceptions Nos. 1, 3, and 4, were lodged in the office of the clerk of the criminal court on the 18th day of March, 1942, and so indorsed by the clerk. Further, it appears by a certified order entered by the criminal court that on the 11th day of September, 1942, the plaintiff in error moved that court to enter an order nunc pro tunc "identifying all of the Bills of Exceptions of the defendant as having been submitted to the court within sixty days after the adjournment of...