State v. Ward

• Decision Date: 27 September 1932
• Docket Number: C. C. No. 457.
• Citation: 165 S.E. 803
• Court: West Virginia Supreme Court
• Parties: STATE. v. WARD.

165 S.E. 803

STATE.

v.WARD.

C. C. No. 457.

Supreme Court of Appeals of West Virginia.

Sept. 27, 1932.

Syllabus by the Court.

An agreement between a prosecuting attorney and an accused, approved by the court, should be upheld ordinarily when the accused has fulfilled his part of the agreement

Certified from Circuit Court, Marshall County.

Criminal prosecution by the State of West Virginia against J. F. Ward. A demurrer toa special plea of the defendant to the indictment was sustained, and the sufficiency of the plea certified.

Ruling reversed.

H. B. Lee, Atty. Gen., and W. Elliott Nefflen, Asst. Atty. Gen., for the State.

O'Brien & O'Brien and Handlan, Garden & Matthews, all of Wheeling, for defendant.

HATCHER, P.

A special plea was interposed to an indictment; a demurrer to the plea was sustained and its sufficiency certified to this court.

The gist of the plea is that fourteen indictments (for violation of the banking laws in relation to the Bank of Benwood) numbered 1 to 14, inclusive, were returned against the defendant in 1925; that it was then agreed between the defendant's counsel on the one hand and the prosecuting attorney and Banking Commissioner on the other, subject to the circuit court's approval, that, if defendant would enter a plea of guilty in one of the indictments and assist the commissioner to liquidate the accounts of the bank, the defendant would be discharged from further prosecution under the other thirteen indictments; that the agreement was approved by the court; that the defendant did plead guilty to indictment number 1 and did render the promised assistance to the commissioner; that the court then sentenced defendant to a term of ten years in the penitentiary, entered nolles in the other thirteen indictments, and discharged the defendant from any further appearance thereto; that, due to credit of time for good behavior, the defendant has completed his term in the penitentiary, and now is haled into court to answer an indictment containing identically the same charges against him as were made in one of the thirteen indictments, i. e., number 11, from which he was discharged by the court under the 1925 agreement.

The Attorney General takes the position "that the alleged agreement between the prosecuting attorney, the state commissioner of banking and counsel for the defendant is (1) null and void and of no effect, and (2) was and is against public policy." In support of the first proposition he cites as "on all fours with this" the cases of State v. Keep, 85 Or. 265, 166 P. 936; People v. Groves, 63 Cal. App. 709, 219 P. 1033, and State v. Lopez, 19 Mo. 255. Oregon and California have statutes (almost. identical in terms) abolishing the entry of a nolle prosequi, denying to district attorneys (attorneys for the state) the right to discontinue or abandon a prosecution for crime and lodging that power solely in the trial courts. In commenting on the effect of those statutes the Supreme Court of California said: "The court, for the pur poses of the order of dismissal, takes charge of the prosecution, and acts for the people. It holds the power to dismiss, as the attorney general in England holds the power to enter a nolle prosequi, by virtue of the office and the law." People v. More, 71 Cal. 546, 547, 12 P. 631, 632. We have no such statutes on this subject as Oregon and California. Consequently, decisions in those states, ignoring agreements of district attorneys to discontinue prosecutions, can have no persuasive effect on us. In the Missouri case an agreement similar to the one now in question was made in "open ...