State v. Bouchelle

As the decision of this Court in awarding a writ of prohibition in this proceeding is contrary to the express provision of the statute which confers jurisdiction upon a circuit court to grant bail to a prisoner after his conviction of any offense other than an offense for which the penalty is death or confinement in the penitentiary for life, I respectfully but emphatically record my dissent.

The statute, in force when the prisoner, E. A. McCoy, after bail had been refused by the Intermediate Court of Kanawha County, made his motion in the circuit court of that county to grant him bail, and when that court granted that motion and admitted him to bail, clearly and expressly provides that "a circuit, intermediate or criminal court, or the supreme court of appeals, or a judge of either of said courts in vacation, may, for good cause shown, admit any person to bail before conviction, or after conviction, except a conviction for offenses where the penalty is confinement in the penitentiary for life, or death, and during the suspension of the execution of the judgment of conviction or pending an appeal or writ of error, and may, by order, direct the clerk of the circuit, intermediate or criminal court of the county in which the offense is charged to have been committed to take the bond with good security in such sum as the court or judge may fix in such order: * * *." (Emphasis supplied.) Code, 1931, 62-1-6, as amended, incorporated in Michie's Annotated Code, 1949, as Section 6152, and just quoted in part, confers original jurisdiction upon the circuit court to admit to bail, upon motion, a person convicted of a misdemeanor, or any other offense except an offense punishable by death or confinement in the penitentiary for life. The terms of the statute are clear and free from any doubt or ambiguity, and they unquestionably mean exactly what they say. When a statute is plain and unambiguous there is no room for interpretation. In such instance judicial construction of the statute is not permissible and it is the solemn and imperative duty of the court to give full force and effect to the express terms and provisions of the legislative enactment. Hereford v.Meek, 132 W. Va. 373, 52 S.E.2d 740; State ex rel. Departmentof Unemployment Compensation v. Continental Casualty Company,130 W. Va. 147, 42 S.E.2d 820; State ex rel. McLaughlin v.Morris, 128 W. Va. 456, 37 S.E.2d 85; Barnhart v. StateCompensation Commissioner, 128 W. Va. 29, 35 S.E.2d 686;State v. Conley, 118 W. Va. 508, 190 S.E. 908; Pettry v.State Compensation Commissioner, 111 W. Va. 409, 163 S.E. 16;State v. Crawford, 83 W. Va. 556, 98 S.E. 615. In State of WestVirginia ex rel. Department of Unemployment Compensation v.Continental Casualty Company, 130 W. Va. 147, 42 S.E.2d 820, this Court, in discussing a clear and unambiguous provision of a statute, said: "When a statute is clear and unambiguous, and the legislative intent is plain, the statute should not be interpreted by the courts. 50 Am. Jur., Statutes, Section 225. See State ex rel. McLaughlin v. Morris, 128 W. Va. 456,37 S.E.2d 85. In such case the duty of the courts is not to construe but to apply the statute." This plain duty this Court, by its decision in this proceeding, has refused to recognize or perform. Instead it has utterly failed to comply with and has completely disregarded the clear mandate of the Legislature.

It is axiomatic in this jurisdiction that the writ of prohibition will not issue against an inferior court unless it is without jurisdiction to act or in acting has exceeded its legitimate powers, and that prohibition will not lie to prevent or correct its merely erroneous judgment. County Court of WoodCounty v. Boreman, 34 W. Va. 362, 12 S.E. 490; Haldeman v.Davis, 28 W. Va. 324; McConiha v. Guthrie, 21 W. Va. 134;Buskirk v. Judge, 7 W. Va. 91. See also Code, 1931, 53-1-1;State v. Hudson, 93 W. Va. 209, 116 S.E. 511.

The issue in this proceeding is not whether the circuit court should or should not have admitted McCoy to bail upon his original motion in that court but whether that court, under the quoted provision of the statute, had jurisdiction to admit him to bail upon motion or in so acting exceeded the legitimate power and authority so to do expressly vested in it by a valid act of the Legislature. Unless clear, simple and unambiguous words have entirely lost their meaning and effect and unless plain English as a medium of expression has become completely futile and ineffective, the quoted provision of the statute authorizes and empowers the Circuit Court of Kanawha County to entertain an original application for bail by a person convicted of any offense other than an offense punishable by death or confinement in the penitentiary for life and, in its discretion, to admit such person to bail. If the plain words of the statute do not have or convey that meaning they are entirely devoid of any meaning. The power of the circuit court, under the statute, to admit, in the first instance, a person to bail after conviction, is independent of the identical power of an intermediate court or a criminal court, or of this Court, to do likewise. The statute may be searched, studied and analyzed in vain for any reference to appellate jurisdiction of a circuit court with regard to its power to grant bail, or for any limitation, such as appellate process or an independent proceeding of habeas corpus, in its exercise. Beyond question the statute deals solely with the exercise of the jurisdiction conferred upon each of the specifically designated courts in an original proceeding in any of them. The question of the jurisdiction of a circuit court by an appellate proceeding to reverse an order of an intermediate court or a criminal court refusing bail or to grant bail in an independent habeas corpus proceeding, with or without a previous order of refusal, which forms the basis for the greater portion of the majority opinion and which that opinion, without any necessity whatsoever for so doing, discusses at length, is not presented or involved in this proceeding.

An original application for bail, either upon motion or by petition, is a single and independent proceeding in any court mentioned in the statute in which such application is or may be made, and a subsequent original application to any other court is likewise a new and separate proceeding and not a continuation of the first proceeding. When the Intermediate Court of Kanawha County refused the application of the prisoner for bail that particular proceeding, so far as that court was concerned, was terminated and, unless and until appealed from, was completely concluded. The first application for bail in the intermediate court in which bail was refused, and the subsequent application to the circuit court in which bail was allowed were not the same proceeding but separate and entirely distinct proceedings. There is no connection between the two applications except the object of the prisoner in each to obtain bail and the possible persuasive effect of the order of refusal in the first application upon the circuit court in the exercise of its discretion in granting or refusing to grant bail in the subsequent proceeding.

I challenge as purely gratuitous, as unsupported by any authority, and as contrary to the express provision of the quoted statute, the statements in the majority opinion that "The naked power of the circuit courts of the State, and of this Court, to grant bail, as the statute says they may do, should not be exercised in such manner as to nullify on mere motion, oral or written, the action of a court of limited jurisdiction having full power to pass upon the question of granting bail. The power to grant bail vested in circuit courts, and in this Court, should be exercised either by way of writ of error or under the writ of habeas corpus." The sentence just quoted expressly admits that the power to grant bail is vested in the circuit courts and in this Court, but it ignores and overlooks the very important consideration that the statute which vests that power alike in circuit, intermediate and criminal courts, and in this Court, contains no restriction or limitation whatsoever with respect to the manner in which that power may be exercised or used. There is no word, syllable or even letter in the statute which indicates any intention of the Legislature to forbid its separate and independent exercise by any of the designated courts or to limit the use of the power to writs of error to the intermediate or the criminal court from the circuit court or to the circuit court from this Court, or to the writ of habeas corpus. That the Legislature did not intend or express any such restriction or limitation in the exercise of the power expressly conferred alike upon the courts designated in the statute, and that the statute in its present form was enacted and amended for the purpose of affording a means of granting bail distinct from and in addition to the established and recognized methods of writs of error andhabeas corpus proceedings, is clearly indicated by the separate and independent existence and use of both these methods long before the statute in its present form was enacted. Independently of the statute, and even if it had never been enacted or if it should be repealed in its entirety, the means of obtaining bail by writ of error or by habeas corpus, when bail has been refused by an inferior court, exists, has existed and will continue to exist in this jurisdiction by virtue of statutes other than any provision of Section 6, Article 1, Chapter 62, Code, 1931, as amended, and by virtue of long established and well recognized legal principles. In Ex parteHill, 51 W. Va. 536, 41 S.E. 903, in recognizing the jurisdiction of this Court to grant bail in a habeas corpus proceeding the opinion says: "* * * the constitution gives this Court original jurisdiction in habeas corpus, and that writ has long been used as a process to obtain bail."

In reverting to the quoted statement from the majority opinion that "The naked power of the circuit courts of the State, and of this Court, to grant bail, as the statute says they maydo, should not be exercised in such manner as to nullify on mere motion, oral or written, the action of a court of limited jurisdiction having full power to pass upon the question of granting bail.", it is not amiss to pose the inquiry: Why should the power to grant bail, admittedly conferred upon the circuit courts and this Court by the statute, not be exercised as the statute provides without any limitation with respect to prior action by an intermediate or a criminal court, "in such manner as to nullify" such prior action of such court which, under the statute, has only the same and no greater power than the circuit courts and this Court in the matter of granting bail? (Emphasis supplied.) If the Legislature had intended to prevent subsequent action by circuit courts or this Court, by means other than writ of error orhabeas corpus, in granting bail after its refusal by either of the two designated inferior courts, it could, and no doubt would, have done so by the use of apt and sufficient language to make clear such intent and purpose. Its failure or refusal to do so indicates clearly to me that no such restriction or limitation was intended or desired in the enactment of the statute. The correctness of the view that the statute was intended to confer upon each of the designated courts the power to grant bail in an original proceeding in any one of them independently of any prior action of any of the others and without restriction in that respect is supported by the language of the first three sentences of Section 6, Article 1, Chapter 62 of the Code of 1931, as amended, which empower a justice to grant bail upon specified conditions and impose express limitations upon the exercise of the jurisdiction conferred upon him and the subsequent provision of the same section relating to courts which contains no such limitation as to them. The three sentences referred to are couched in these terms: "A justice may admit to bail a person who is charged with, but not convicted of, an offense not punishable with death. If the offense be punished by confinement in the penitentiary, he shall not admit such person to bail in a sum less than five hundred dollars. Buta justice shall not admit any person to bail if bail has beenpreviously refused to such person by any court or judge; nor shall any person confined in jail by an order of commitment in which the amount of bail he is to give is specified, or where an order has been made by a court or judge fixing the bail such person is to give, be admitted to bail by a justice in a sum less than is specified in the order." (Emphasis supplied.) The omission of any limitation or restriction upon the courts of the character of that imposed upon a justice, which could have been incorporated in the statute, indicates clearly that refusal of bail by any one of the designated courts should not deprive any of the others of the power to grant bail upon a subsequent original application to it for bail.

The decisions of this Court in the case of State ex rel.Baldwin Supply Company v. Shepherd, Judge, 95 W. Va. 335,121 S.E. 98, and MacCorkle v. Bouchelle, 132 W. Va. 409,52 S.E.2d 233, cited and relied on in the majority opinion, are clearly inapplicable in this proceeding. Those cases merely recognize and apply in civil proceedings the well established general rule that when courts of concurrent jurisdiction are in conflict the court that first obtains jurisdiction of the subject matter and the parties has the exclusive right to hear and determine the case. If the circuit court had assumed jurisdiction to hear and determine the criminal proceeding against the prisoner, pending in the intermediate court, the rule of those cases and other decisions of this Court would apply and be controlling in this proceeding. The circuit court, however, has not attempted, in any manner whatsoever, to exercise jurisdiction in any criminal proceeding in the intermediate court and, as to the judgment of fine and imprisonment in the criminal proceeding which has been tried and concluded in the intermediate court, the circuit court has refused to grant the prisoner a writ of error and his application for a writ of error to its judgment of refusal had been presented to and was not disposed of by this Court when the decision in the case at bar was rendered. Neither has the circuit court, by granting bail to the prisoner, intervened or interfered with the intermediate court in hearing and determining any criminal proceeding against him instituted or pending in that court. Independently of the application of the prisoner to the circuit court for bail, and regardless of its action in that respect, the exclusive jurisdiction of the intermediate court to try all such criminal proceedings remains in full force and effect and entirely unrestricted and unimpaired by any action of the circuit court. To hold that the circuit court has exceeded its legitimate powers by usurping or interfering with the jurisdiction of the intermediate court is simply to disregard the situation which actually exists. Despite the labored effort of the majority to create and deal with a situation which would justify the application of the rule of the cases last cited, no such situation in reality exists. Notwithstanding the failure or the refusal of the majority to recognize and deal directly with the actual situation, the real issue involved in this proceeding is not whether the circuit court has exercised jurisdiction over any proceeding in the intermediate court but whether its exercise of the jurisdiction expressly conferred upon it by the quoted provision of Section 6, Article 1, Chapter 62, Code, 1931, as amended, to grant bail in an original proceeding which though growing out of and resulting from the criminal proceedings in the intermediate court is separate and distinct from them and from the concluded proceeding in which that court refused the prior application of the prisoner for bail, is valid and should be recognized and sustained.

I am unwilling to concur in a decision which, as does the holding in this case, summarily deprives the Circuit Court of Kanawha County of the jurisdiction expressly conferred upon it by the statute and which, in principle and by statements contained in the majority opinion, denies the power of this Court to admit to bail upon an original application by petition or motion and which also disregards and condemns the previously recognized and well established practice that has long prevailed in this Court of granting bail to a prisoner upon petition or motion when his prior application has been refused by an inferior court in which is pending a criminal proceeding against him. In the face of the statute, to limit the means of obtaining bail from the circuit court and this Court to a writ of error from a prior order of refusal, or to a habeas corpus proceeding, is legally unsound as well as practically unwise. The limitation now imposed by this Court will inevitably result in unnecessary additional costs and unwarranted and inexcusable delay in determining the right of a prisoner to bail in any instance in which his original application has been arbitrarily, or for any reason improperly, denied by an inferior court. It is, moreover, clearly at variance with the policy of the law of this State which requires that an application for bail by anyone held in custody should be heard and determined without delay and with promptness and dispatch.

As already pointed out, the correctness of the action of the circuit court in admitting the prisoner to bail is not in issue and can not be considered or reviewed in this proceeding. Even if it be conceded that the conduct of the prisoner, in violating the condition of his recognizance by leaving this State and remaining in Tennessee until he learned that by extradition he would be brought back to Kanawha County and only then and for that reason decided to return, should call for denial of his application for bail, these facts and circumstances do not affect, impair or abolish the expressly conferred jurisdiction of the circuit court to entertain and grant the motion for bail and did not cause that court, in so acting, to exceed its legitimate powers. At most the action of the circuit court constituted an abuse of its discretion or was erroneous for other reasons, but in any such event its action in that respect can not be reviewed, controlled or corrected in the present proceeding in prohibition. On the contrary all these matters are properly cognizable only in a proceeding for appellate review and not in prohibition. For that reason alone the writ should have been refused in this proceeding.

The holdings of this Court in Ex parte Hill, 51 W. Va. 536,41 S.E. 903, and Ex parte Doyle, 62 W. Va. 280, 57 S.E. 824, cited and discussed in the majority opinion, occurred before the statute in its present form was enacted and when the prior statute did not authorize the granting of bail after conviction, and, in consequence, those cases are not controlling of the decisive question or even of much help in the decision of this case. It should be observed, however, that in the Hill case, decided under the earlier statute which did not contain the present provision authorizing bail after conviction, this Court said, in Point 2 of the syllabus, that "Bail may be granted on mere motion in the circuit court under the statute." In the Doyle case, also decided before the provision for bail after conviction was incorporated in the present statute, this Court held, in Point 3 of the syllabus, that "A circuit court has power to and should bail after conviction of a misdemeanor pending a writ of error from the judgment; and application must be made to it for bail, before asking a habeas corpus of this Court to obtain bail." Both of the above quotations are set forth in the majority opinion and they support my view that, in limiting the means of obtaining bail from a circuit court or this Court, after it has been refused by an inferior court, to writ of error or habeascorpus, this Court has adopted an unsound and unwise rule and that the imposition of the limitation is not justified or supported by, but is in fact contrary to, its prior decisions.

As the jurisdiction of the Circuit Court of Kanawha County to grant bail to the prisoner upon his application to that court, notwithstanding the prior refusal of a similar motion by the intermediate court, clearly existed by virtue of the express provision of the statute and as the circuit court, in admitting him to bail, did not, in any respect, exceed its legitimate powers, even if its action was erroneous, I would deny the writ sought by the petitioner and dismiss this proceeding.

Judge Riley joins in the views set forth in this dissent.