State v. Bouchelle

Fox, Judge: The narrow question presented in this proceeding is whether the Circuit Court of Kanawha County may, on oral motion for bail, grant such bail in circumstances where application for such bail had been made to, and refused by, the Intermediate Court of Kanawha County, a court possessing general criminal jurisdiction subject, however, to appeal by writ of error to the circuit court of said county, and which intermediate court had custody of the respondent, E. A. McCoy, to whom such bail was granted by the circuit court. No question is raised as to the constitutional and statutory power of the circuit court of said county to grant bail where a case is before it on a writ of error, or where the writ of habeas corpus has been invoked therefor; nor is any question raised as to the right of said circuit court to grant bail, on oral motion, *36 where it has the custody of the person of the party applying therefor. The facts giving rise to this dispute are that the respondent, E. A. McCoy, was under indictment with other parties, on five separate charges of misdemeanors, growing out of alleged violations of the laws of the State against gambling and the unlawful sale of intoxicating liquors, in the Intermediate Court of Kanawha County. He was tried on one of said charges, convicted and sentenced to confinement in the jail of Kanawha County and required to pay a fine. The judgment of fine and imprisonment was upheld by the Circuit Court of Kanawha County on May 18, 1949, and suspended for sixty days to permit a presentation of the case to this Court, but such presentation was not made within such extension period. A trial on another one of said charges was fixed for the 29th day of June, 1949. Immediately prior thereto, said respondent left this State and became a fugitive from justice, and was later located in the State of Tennessee. In the meantime, the bond he had given for his appearance fdr trial was forfeited. Extradition proceedings were instituted in Tennessee, but upon being advised by the proper authorities of that State that the warrant for his extradition to West Virginia would be awarded, respondent, on July 12, 1949, voluntarily returned to West Virginia and surrendered himself to the custody of the Intermediate Court of Kanawha County. In these circumstances he made application to said intermediate court for bail on July 20, 1949, and his motion was denied. On July 25, 1949, he made an oral motion in the Circuit Court of Kanawha County for the bail which the intermediate court had denied him, and said court on July 26, 1949, without any showing of cause, entered an order granting bail. On July 29, 1949, the petition in this case was filed, and on August 1, 1949, the rule in prohibition now before us was granted, requiring the respondent, Julian F. Bouchelle, Judge, and E. A. McCoy to appear before this Court on September 7, 1949, to show cause why the respondent judge should not be prohibited from further enforcing his order in granting bail as afore *37 said. There was filed by the respondent Bouchelle, Judge, a demurrer to said petition, a motion to strike certain portions thereof, and an answer to said petition which does not raise any substantial questions of fact, and the case was submitted on the pleadings. On October 1, 1949, an order was entered by this Court granting a writ of prohibition inhibiting the said respondents, and each of them, from proceeding further in the enforcement of the order made by the Circuit Court of Kanawha County on July 26, 1949, admitting the said E. A. McCoy to bail, which order entered by this Court held that the order granting the bail aforesaid was void for the reason that in entering the same the Circuit Court of Kanawha County, in the circumstances, exceeded its legitimate powers. The order entered by this Court made provision for the filing of an opinion in the case, and such opinion is now filed. Such order was concurred in by Judge Kenna, now deceased, and this opinion represents the views of Judges Fox and Lovins, and, it is believed those held by Judge Kenna at the time the order aforesaid was entered. While the granting of bail is now controlled by our statute, Section 6, Article 1, Chapter 62, Acts of the Legislature, 1937, Michie’s Code, 1949, 62-1-6, it may not be out of place to refer to the common law rule in respect to the granting of bail. In 6 Am. Jur. 65, this rule is stated to be: “Under the common-law rule, bail was not granted as a matter of right, but was granted or denied in the exercise of a sound discretion, subject to certain established principles and precedents which provided the guide by which the court exercised its discretionary powers to the fullest advantage and in accordance with the soundest principles of justice. It has been said, however, that the policy pervading our jurisprudence in this respect, and the unmistakable trend, is to commit as little as possible to judicial discretion.” Some of the states have made the granting of bail a constitutional privilege, and, of course, there prevails a rule found in most Constitutions that excessive bail shall not be required. Section 5 of Article III of our State Constitution provides that: “Excessive bail *38 shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. * * *” This, of course, implies that courts should, in proper cases, grant bail, and requires them to conform to the provisions of the Constitution quoted above. The manner of granting bail was controlled by statute in Virginia prior to the formation of this State. Section 6, Chapter 204, Virginia Code, 1849, provides that a circuit court, or the general court, or any judge thereof, might admit a person to bail before conviction, and in substance the same provision is contained in the corresponding section of the Virginia Code of 1860. Section 6 of Chapter 156, Code, 1868, provides that: “A justice may let to bail a person who is charged with, ,but not convicted of, an offense not punishable with death. If the offense be punishable by confinement in the penitentiary, he shall not admit such person to bail in a less sum than five hundred dollars. But a justice shall not admit any person to bail, if bail has been previously refused to such person by any court, judge, or justice; 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 less sum than is specified in such order. But a circuit court, or a judge thereof in vacation, may, for good cause shown, admit any person to bail before conviction.” It will be noted that, for the first time, the requirement that good cause be shown for the admission of a person to bail is incorporated in the statute. Section 6 of Chapter 89, Acts of the Legislature, 1872, deals with the granting of bail, and contains this provision: “But a circuit court or a judge thereof, in vacation, may, for good cause shown, admit any person to bail before conviction.” Section 6 of Chapter 79; Acts of the Legislature, 1882, provides: “* * * But a circuit court, or a judge thereof in vacation, may, for good cause shown, admit any person to bail before conviction, and may by order direct the clerk of the *39 circuit court of the county in which the offense is charged to have been committed, to take the bond with good security in such a sum as the court or judge may fix in said order.” No further amendment to the statute in respect to the granting of bail was made until by Section 6 of Chapter 81, Acts of the Legislature, 1915, the statute was amended to read as follows: “* * * But a circuit court, or 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, or 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 court of the county in which the offense is charged to have been committed to take the bond with good security in such a sum as the court or judge may fix in said order. * * *” By Chapter 38, Acts of the Legislature, 1935, amending and reenacting Section 6, Article 1, Chapter 62 of the Code of 1931, it is provided that: “But 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 for a misdemeanor, or after a new trial has been granted after conviction for a felony, except conviction for offenses where the penalty is confinement in the penitentiary for life or death, * * It will be observed that bail is authorized after conviction for a misdemeanor, but not where there has been a conviction for a felony unless a new trial has been granted. The final amendment to the statute was made by Section. 6, Article 1, Chapter 62, Acts of the Legislature, 1937, by which it is provided that: “* * * But a circuit, intermediate or criminal court, or the supreme court of appeals, or a judge *40 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 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. * * *” This final action of the Legislature is embodied in Michie’s Code, 1949, 62-1-6. The matter of granting bail has been considered by this Court in two cases, both of which disregard the plain language of the statute as it then existed in respect to granting bail in criminal cases. In Ex Parte Hill, 51 W. Va. 536, 41 S. E. 903, decided in the year 1902, it was held that: “After conviction of felony there can be no allowance of bail by this Court or a circuit court, except that for some cause extraordinary, not growing out of, but independent of, the criminal act, as for sickness, bail may be granted before conviction, or after it, pending a writ of error and before actual commitment to the penitentiary. * * *” The syllabus point then goes on to state that a party must be laboring under a present painful, severe and dangerous disease, and that there must be strong probable reason to apprehend that continued imprisonment would be fatal or cause grave injury to health. It was also held in that case that: “The Supreme Court of Appeals has jurisdiction to award a writ of habeas corpus having for its sole purpose the obtaining of bail in a felony case, and to grant bail upon it. Bail may be granted on mere motion in the circuit court under the statute.” At the date of this holding, the controlling statute was Section 6, Chapter 79, Acts of the Legislature, 1882, which provided: “But a circuit court, or judge thereof in vacation, may, for good cause shown, admit any person to bail before conviction. * * *” Thus it will be seen that the Court in that case *41 treated the plain provisions of the statute as suspended on supposed principles of statutory construction that a provision within the letter of a statute, but not within its spirit, will not be given effect, and based its decision on principles of humanity. In the body of the opinion it was stated that: “But whilst it seems clear that our statute limits bail to persons not yet convicted, still that applies only to the circumstances connected with the offense, is tested by the party’s guilt or innocence, and the statute does not, in such limitation, touch those cases where extraordinary circumstances, independent of the merits of the case, call for bail. ‘The illness of the prisoner is such a circumstance, and the humanity of our law makes it a consideration which should, under all circumstances, regardless of the charge upon which the prisoner is confined, or the stage of the proceeding at which the application is made, influence the court to exercise its discretion and admit to bail.’ 3 Am. & Eng. Ency. Law, 677; Church Hab. Corp. s 410.” In Ex Parte Doyle, 62 W. Va. 280, 57 S. E. 824, decided in 1907, it was held 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.” Doyle had been sentenced to a term of imprisonment in the county jail, and had obtained a writ of error to the judgment of conviction. He then applied for bail to this Court by a writ of habeas corpus, and his application for bail was denied on. said writ on the ground that the circuit court had power to grant bail after conviction in a misdemeanor case. The controlling statute, Section 6, Chapter 79, Acts of the Legislature, 1882, made no provision whatever for the granting of bail after conviction in any type of case, but it was stated in the body of the opinion that: *42 “* * * It is, and we think ought to be, law that one convicted of misdemeanor and granted a writ of error may be bailed pending it. Justice demands it. The section could not have been intended to deny this. The law of bail, by common law principles, would grant bail pending a writ of error. * * * We do not think our statute takes away this power to bail after conviction of misdemeanor; and the circuit court has this power. Bail rests on common law, except as statute controls; and that court has power to bail which has power to try and determine the case. The power is inherent in that court by common law, because it has charge of the accused. * * * By common law the Court of King’s Bench wielded the power to bail, and our circuit courts, as courts of record of general common law jurisdiction, in bail matters wields the same jurisdiction. * * * “Our decision is as to misdemeanors. As to felonies, there is discretion to bail or not; but I do not realize thát such is the case of misdemeanors. * * *” It will be observed that by such decision the Court only held that after a writ of error had been granted to a defendant in- a misdemeanor case, the circuit court had power to and should grant bail. In the case at bar a writ of error had not been granted although an order suspending judgment had been entered to enable McCoy to apply for a writ of error, and the time fixed by the suspension order had expired. As will be noted above, power to grant bail was first vested in the circuit courts of the State. This court bad no statutory power to grant bail unless under its constitutional and statutory jurisdiction in habeas corpus. The development of the State created centers of population calling for the creation of courts of limited jurisdiction,, as provided by Sections 1 and 19 of Article VIII of our State Constitution, and certain courts were established which, among other powers, had complete jurisdiction to try criminal cases, and were granted general jurisdiction over such cases. Among these was the Intermediate Court *43 of Kanawha County. It will be noted that subsequent to the establishment of this type of court, the power to grant bail was extended to them, the effect of which was to vest in such courts concurrent jurisdiction with circuit courts to grant bail in criminal cases. In many counties, including the County of Kanawha, all criminal cases are tried in the intermediate court, and the jurisdiction of the circuit court over such cases is limited to hearing appeals by way of writs of error to the intermediate court. In that county the custody of the person charged with crime is, in the first instance, always with the intermediate court, and if the supposed inherent power of courts to grant bail be given any weight, it necessarily follows that such power rests in the first instance with the court which has the person charged with crime in its custody. Therefore, application for bail is generally, and in all cases should be, made to the court having custody of the person charged with the crime, and not to a circuit court or to this Court, until the criminal or intermediate court has acted upon an application for bail. 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. We say this because it is a well established rule applied to civil cases, and we think should be applied to criminal cases, that where courts of concurrent jurisdiction are in conflict, the court which first obtains jurisdiction of the subject matter and the parties should have exclusive right to hear the matter in issue. State ex rel. Baldwin Supply Co. v. Shepherd, Judge, 95 W. Va. 335, 121 S. E. 98; McCorkle v. Bouchelle, 132 W. Va. 409, 52 S. E. 2d 233. The McCorkle case involved an injunction issued by a circuit court which, in effect, nullified the action of the Court of Common Pleas of Kanawha County in entering an order respecting the temporary custody of infants. We held that *44 the circuit court, in granting the injunction, was not exercising an appellate power, arid that it did not have power or jurisdiction to award an injunction, and thus nullify the action of the inferior court upon mere motion, as distinguished from an appellate proceeding. The same principle applies to the case at bar, and requires us to hold that the Circuit Court of Kanawha County, in granting bail to respondent, McCoy, on mere motion, exceeded its legitimate power, even though it had jurisdiction and power to grant bail in all cases properly presented to it. There can be no question of the jurisdiction of the Circuit Court of Kanawha County to grant bail in all cases where an application therefor may be properly made to that court. In most counties of the State, circuit courts exercise sole jurisdiction to try criminal cases; and in such courts bail may be granted on mere motion under the statute. Ex Parte Hill, supra. There can be no question of the power of the circuit court, and of this Court, to award a writ of habeas corpus, having for its sole purpose the obtaining of bail in a felony case, and to grant bail upon it. Ex Parte Hill, supra. There can be no question of the right of the Circuit Court of Kanawha County to grant bail where there has been an application before it for an appeal by way of writ of error to the judgment of the intermediate court of said county. In creating the Intermediate Court of Kanawha County, the Legislature did not intend to deprive the circuit court of said county of any power it originally possessed, save and except those powers which the intermediate court was empowered to exercise exclusively, in the first instance, by reason of its custody of a person charged with a crime, and the power granted to it to try all criminal cases. In this respect, we think the power of the circuit court was limited to conform in criminal cases to the procedure established in civil cases, and that its right to grant bail was thereby limited to the exercise of its appellate power, or the exercise of its power to award the writ of habeas corpus for such purpose. Any other rule would violate the general principle that the court first taking jurisdiction is ex *45 clusively entitled to exercise its full powers. But the Intermediate Court of Kanawha County in the exercise of such powers, is, of course, subject to the supervision and control of the circuit court of said county on writ of error, and, in its exercise of the independent power to grant the writ of habeas corpus. The mere possession of naked power or jurisdiction does not authorize its misuse or abuse. Code, 53-1-1, provides that: “The writ of prohibition shall lie 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.” Our holding in this case is that while the Circuit Court of Kanawha County has, in all cases properly before it, general jurisdiction to grant bail, it exceeded its legitimate powers in that respect when, on mere motion, it granted bail to the respondent, E. A. McCoy; and that this Court is warranted in prohibiting the enforcement of the order granting such bail. As indicated above, in the circumstances of this case, the circuit court should have declined to entertain such motion and require the respondent, McCoy, to proceed by way of writ of error or habeas corpus if he sought the judgment of the circuit court on his application for bail. In making this statement we are, perhaps, influenced by our belief in the value of a policy which, as between courts, tends to that amity, respect and consideration, one for the other, which should always prevail. The principles announced in this opinion may not have been fully recognized and applied by this Court in passing upon the application for bail where a circuit court has refused to grant bail. We have many times entertained petitions for bail in cases where bail was refused by a circuit court. We have always required the filing of a petition in writing, and a showing of good cause before granting bail; but we have not followed the course suggested by Judge Brannon, in Ex Parte Hill, supra, that application for bail be made through the use of the writ of habeas corpus. In the future, persons applying to this *46 Court for bail, in cases where the same has been refused by the circuit court having the custody of the person seeking bail, will be well advised to use the writ of habeas corpus, or some appropriate appellate procedure. Writ awarded.