State v. Woods

• Decision Date: 14 November 1922
• Citation: 92 W.Va. 331
• Parties: State v. Hon. J. M. Woods, Judge et al.
• Court: West Virginia Supreme Court

92 W.Va. 331

State

v.Hon. J. M. Woods, Judge et al.

Supreme Court of Appeals of West Virginia.

Submitted November 13, 1922,

Decided November 14, 1922.

1. Criminal Law Defendant for Good Cause Shown May Be Granted More Than One Change of Venue.

Sees. 15, 16 and 17 of chapter 159 of the Code, providing for a change of venue in a criminal case, properly construed in consonance with the spirit of sec. 14, art. 3 of the constitution, guaranteeing to the accused a fair and impartial trial, does not prohibit more than one change of venue upon petition of the accused and for good cause shown, (p. 337).

2. Same Circuit Court to Which Case Has Been Transferred May Grant a Further Change of Venue for Good Cause Shown.

Where there has been a change of venue in a criminal case to another county from that in which the indictment was returned, the circuit court of the county to which the case has been ordered has jurisdiction to hear and determine the petition of the accused for a further change of venue and to award a further change if good cause therefor be shown, (p. 337).

3. Prohibition Appellate Court Will Not Review Evidence to Determine if Lower Court Abused Discretion in Awarding Second Change of Venue.

On an application for a writ to prohibit such court from entering an order awarding to the accused a second change of venue, the appellate court will not review the evidence on which the lower court's action is based to determine if the judge thereof has or has not abused his discretion, (p. 339).

Application for writ of prohibition by the State of West Virginia against Hon. J. M. Woods, Judge, and others.

Writ refused.

John T. Porterfield, John Chaffin and A. M. Belcher, for petitioner.

C. J. Van Fleet, T. C. Townsend and H. W. Houston, for respondents.

Lively, Judge:

This proceeding is an application for a writ of prohibition against Hon. J. M. Woods, judge of the circuit court of Jefferson county, to inhibit him from awarding to C. F. Keeney, who is indicted as accessory to the murder of George Munsey in Logan county, a second change of venue.

Keeney and others were indicted at the September, 1921, term of the circuit court of Logan county, as accessories before the fact to the murder of George Munsey, in that county, and upon his petition for good cause shown the trial of the case was transferred by that court to the circuit court of Jefferson county. The indictment was one of the results of what is termed the "armed march" of certain miners, members of the United Mine Workers of America, from the counties of Kanawha and Boone to the non-union mines in the county of Logan in the year 1921. Many other indictments for various offenses arising out of this armed march were returned by the grand juries in both Logan and Kanawha counties, and a large number of these cases was also transferred, at the same time, for trial to the circuit court of Jefferson county. The trial of the first of these indictments in that county on a charge of treason against William Blizzard resulted in an acquittal. Afterwards, Rev. Wilburn and his son John Wilburn, who were separately tried, were convicted of murder in the second degree. Walter Allen was next tried and convicted of treason. The trial of Keeney upon an indictment as accessory to the murder of Munsey was set for the 23d day of October, 1922, and when his case was called he presented his petition for a change of venue, alleging, among other things, that there had arisen such a bias of prejudice against him and his co-defendants in the county of Jefferson that he could not be afforded a fair and impartial trial therein, and in support of his petition filed numerous affidavits. The state resisted this motion for change of venue, replied to the petition, and supported its opposition by numerous affidavits. The circuit judge, after mature consideration, announced his intention to grant the prayer of the petition and award a change of venue, and thereupon the state announced its intention of applying to this court for a writ of prohibition, and all proceedings were staid until the decision of this court. This court promptly rendered its decision through its president, Judge Poffenbarger, who orally announced the decision from the bench, refusing to award the writ, on the 14th of November, 1922.

The state contends that the circuit court of Jefferson county had no jurisdiction to award a second change of venue to the defendant; that the constitution and statutes of this state contemplate only one change of venue and that from the county in which the indictment is returned, and there having been one change of venue from Logan county to Jefferson county, the letter, spirit and reason of the constitution and statute have been fully satisfied and exhausted and that the lower court had no jurisdiction except to try the case. The circuit court held, and counsel for defendant insisted, that the constitutional and statutory provisions do not limit the defendant to one change of venue. Thus the controlling issue is raised.

A preliminary point is raised by defendant's counsel, in which they assert that prohibition is not the proper remedy. If the lower court had no jurisdiction to award the second change of venue or has exceeded, its jurisdiction in so doing, then prohibition will lie. It is an ancient common law remedy issuing from superior courts of common law to the inferior courts to restrain the latter from excess of jurisdiction. Under our statute the writ lies as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or having such jurisdiction, exceeds its legitimate powers.

The question here for decision depends upon a proper construction of section.14 of the bill of rights, and sections 15, 16 and 17 of chap. 159 of the Code. They are as follows:

"§14. Trials of crimes, and misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men, public, without unreasonable delay and in the county where the alleged offiense was committed, unless upon petition of the accused, and for good cause shown, it is removed to some other county. In all such trials, the accused shall be fully and plainly informed of the character and cause of the accusation, and be confronted with the witnesses against him, and shall have the assistance of counsel, and a reasonable time to prepare for his defense; and there shall be awarded to him compulsory process for obtaining witnesses in his favor."

"§15. Change of Venue. A circuit court may, on the petition of the accused and for good cause shown, order the venue of the trial of a criminal cause in such court, to be removed to some other county."

"§16. When the venue is so changed, the court making the order shall recognize the witnesses and the accused (if the offense be bailable, and bail be given) to appear on some certain day before the court to which the case is removed; if the offense be not bailable, or the bail required be not given, the court shall remand him to its own jail and order its officers to remove him thence to the jail of the court to which the case is so removed, so that he shall be there before the day for the appearance of the witnesses."

"§17. The clerk of the court that orders a change of venue, shall certify copies of the recognizance aforesaid, and of the record of the case, to the clerk of the court to which the case is removed; and such court shall proceed with the cases as if the prosecution had been originally therein, and for that purpose the certified copies aforesaid shall be sufficient. ''

The able briefs of counsel have facilitated an examination of the decisions of the various states based on the different statutory provisions. These statutory enactments, especially with respect to the number of times a party may obtain a change of venue, are very dissimilar, and of course the decisions based thereon are necessarily variant. Some of the states, notably, Alabama, Arkansas, Indiana, Kentucky, Nebraska and Missouri expressly provide that only one change of venue may be had by the same party for the same cause Usually there is a provision in these statutes that the accused shall have change of venue as a matter of right upon filing his affidavit, sometimes supported by other affidavits, showing cause. It is apparent that the decisions of courts under such statutes can be of little assistance in the instant case. In the absence of direct statutory provisions it has been held that at least a second change of venue may be had upon proper application therefor. "The fact that the venue has already been changed once can make no difference, as the object of the law is to provide the parties with a disinterested, unprejudiced and unbiased tribunal to adjudicate their cause." 27 R. C. L. page 818, sec. 38, title, "Number of changes permissible." To this effect is People v. Hubbard, 22 Cal. 34. In Iowa it was held that in order to obtain a second change of venue the affidavit for the second application must show the ground relied on did exist when the first application for change of venue was granted. Schaentgen v. Smith, 48 la. 359; Michales v. Crabtree, 59 Ia. 615. In Texas, although the statute allowed but one change of venue on the motion of the defendant in a criminal case, yet it was held that the court may of its own motion order a change, and the venue may be changed twice by the court in its discretion. Augustine v. State, 41 Tex. Crim. 59. In the case of State v. Minski, 7 la. 337, it appeared that the statute allowed either party a change of venue in a proceeding before a justice of the peace for certain causes, and then the case was to be sent to the next...