State v. Corbin , 117 W. Va. 241 ( 1936 )

For the reasons set forth in the opinion, I concur that there was prejudicial error at the trial, and, the majority of the court declining to dismiss the writ of error as improvidently awarded, I concur in the reversal. But it is my view that we should sustain the motion of the state to dismiss the writ of error as improvidently awarded, and remand the case to the circuit court for definite action, either affirming or reversing the judgment of the criminal court. I consider that the defendant's petition is still pending in the circuit court, awaiting definite action.

There can be no writ of error from this court directly to a judgment of a criminal court. Robinson v. Railroad Co., 80 W. Va. 290,92 S.E. 441. Writs of error from this court apply to judgments of circuit courts. Records of criminal courts can reach the supreme court of appeals for review only through the circuit courts. It is my opinion that a judgment of conviction of a criminal court cannot be reviewed by the court of last resort of the state until the criminal court's action has been affirmed by a circuit court.

After his conviction in the criminal court of Harrison County, the defendant petitioned the circuit court of that county for a writ of error. That court entered an order refusing the writ of error, but did not recite that the judgment of the criminal court was affirmed. Nor was there a recital that the judgment of the criminal court was plainly right, as contemplated by the act creating the criminal court. Acts of the Legislature of 1909, chapter 27, section 20. In a similar situation, this court, inBlumberg v. Snyder, 90 W. Va. 145, 110 S.E. 544, dismissed as improvidently awarded a writ of error because a circuit court in approving the judgment of an inferior trial court had not stated in the order of refusal that in the circuit court's opinion the judgment of the inferior tribunal was plainly right. The statutory provision there involved and the cited provision of the Harrison County Criminal Court Act are practically identical. The holding in the Blumberg case was followed in Truslow v. Payne, 90 W. Va. 149, 110 S.E. 546, andWilliams v. Irvin, 101 W. Va. 708, 133 S.E. 390.

The circuit court's action in passing this matter on to the supreme court without express affirmation or without recital that in the circuit court's opinion the judgment of the criminal court was plainly right, is sought to be justified under a statutory provision which was newly adopted in the Code of 1931. The particular provision upon which reliance is had reads: "* * * but in any case where the circuit court or judge rejects the petition, the petition and order of rejection, together with the record of the cause, may, within four months from the date of the order of rejection, be presented to the supreme court of appeals, or any judge thereof in vacation, for an appeal from, or writ of error or supersedeas to, such order of rejection, * * *." Code, 58-4-7. In so far as this statutory provision would seem to authorize the transmission of such matter by the circuit court to this court without the circuit court's affirmation of the trial court's order, I am of opinion that it is unconstitutional and void, because in contravention of a provision of section 3, Article VIII of the Constitution of West Virginia. The provision reads: "It (supreme court of appeals) shall have appellate jurisdiction in criminal cases where there has been a conviction for felony or misdemeanor in a circuit court, and where a conviction has been had in any inferior court and been affirmed in a circuit court, * * * and such other appellate jurisdiction, in both civil and criminal cases, as may be prescribed by law." The requirement seems plain that in respect of a judgment of an inferior court, there must be an affirmance by the circuit court before there can be a review by the supreme court of appeals. The reason of this requirement of our organic law is evident, namely, that both the litigant who seeks review of his case and the supreme court of appeals shall have the benefit of the judgment of the circuit court. If the circuit court is doubtful of the correctness of such judgment, and therefore does not affirm it, the litigant ought not to be put to the expense and trouble of bringing his case to the supreme court of appeals, and that court should not be required to review a matter of which the circuit court should have disposed. In its order refusing a writ of error, the circuit court refers to its "reasons announced from the bench." There was no written opinion, but counsel for the defendant state in substance on brief that the circuit court expressly refused to affirm the criminal court's judgment — merely declined to award a writ of error. In my judgment, that procedure is not warranted by the law. Such procedure, seemingly contemplated by the new statute quoted, will have the practical effect of bringing cases directly from special statutory courts to the supreme court of appeals through the mere pro forma action of the circuit courts. I am of opinion that such is not within the letter or spirit of the constitutional provision quoted.

To the suggestion that the latter part of said constitutional provision vesting the supreme court of appeals with "such other appellate jurisdiction, in both civil and criminal cases, as may be prescribed by law," warrants the above quoted portion of the statute, I reply that this latter constitutional provision, being general in its terms, is intended to apply to matters not otherwise specifically dealt with in the same section. Illustrative of the matters comprehended thereby are certifications of questions pertaining to the sufficiency of writs and pleadings, Code, 58-5-2, and review of trial court judgments holding indictments insufficient. Code, 58-5-30.

It is my conception of our judicial structure that there may be no review by the supreme court of appeals of a judicial matter on its merits unless there be a judgment or decree of a circuit court rendered on the merits, and that where the trial was had in an inferior court, in order that there may be review by the supreme court, the circuit court's order must unequivocally declare the circuit court's affirmation.

For reasons stated I dissent from Syllabus one and the portion of the opinion in harmony therewith. Otherwise, I concur.

Judge Hatcher authorizes me to say that he concurs in the views herein expressed.