Opinion
No. 5241.
Submitted September 24, 1924.
Decided December 22, 1924.
Original proceeding by David D. Ashworth, Prosecuting Attorney of Raleigh County, against Hon. John H. Hatcher, Judge of the Circuit Court of the Tenth Judicial Circuit, for a writ of prohibition.
Writ awarded.
E. T. England, Attorney General, for petitioner.
J. W. Maxwell, for respondent.
Emma Houchins, having been indicted in the criminal court of Raleigh county for the murder of Lewis Romans and Emma Carter, was tried for the murder of Emma Carter and acquitted. On her subsequent arraignment for the murder of Lewis Romans, she tendered a plea of autrefois acquit, averring that Emma Carter and Lewis Romans had met their deaths from stray pistol shots fired rapidly by the accused while defending herself against a felonious attack at the hands of Anna Romans; and that her acquittal in the one case was a bar to prosecution in the other. A demurrer to the plea having been sustained, the judge of the criminal court, upon joint request of the prosecuting attorney and counsel for the accused, attempted to certify his ruling to this Court for review, under Section 1, Chapter 135, Code 1923; but for want of jurisdiction under the statute to consider matters on certificate from other than circuit courts, we did not respond to the question certified. State v. Houchins, 96 W. Va. 375, 123 S.E. 185.
Thereafter the accused obtained from the circuit court of Raleigh county a writ of certiorari commanding the criminal court to certify to said circuit court the complete record in the case, and to stay proceedings therein until the further order of the circuit court. The relator by writ of prohibition seeks to restrain the action of the circuit court, for want of jurisdiction in the premises.
In England, at common law, the writ of certiorari is an original writ issuing out of Chancery or the King's Bench, directed in the king's name to the judges or officers of inferior courts, commanding them to return the records of a cause depending before them, in order that the party may have more sure and speedy justice, before him, or such of his justices as he shall assign to determine the merits. It is frequently used in order the better to consider and determine the validity of an indictment and proceedings thereon and to prevent a partial and insufficient trial which it is thought would take place in the original jurisdiction. The writ is sometimes issued after final judgment to meet the ends of justice where no other remedy is provided. Chitty's Crim. Law, Chap 9.
Section 12 of Article VIII., West Virginia Constitution, confers upon circuit courts the power of supervision and control over all proceedings before justices and other inferior tribunals by mandamus, prohibition and certiorari.
Section 2 of Chapter 110 Code, (Barnes' 1923), provides:
"In every case, matter or proceeding, in which a certiorari might be issued, as the law heretofore has been, and in every case, matter or proceeding before a county court, council of a city, town or village, justice or other inferior tribunal, the record or proceeding may, after a judgment or final order therein, or after any judgment or order therein abridging the freedom of a person, be removed by a writ of certiorari to the circuit court of the county in which said judgment was rendered, or order made; except in cases where authority is or may be given by law, to the circuit court or the judge thereof in vacation, to review such judgment or order on motion, or on appeal, writ of error or supersedeas, or in some manner other than upon certiorari."
The alleged jurisdiction of the circuit court rests upon the theory that the writ of certiorari according to the English practice has been in use in this State and Virginia prior to the adoption of the West Virginia Constitution, and that Section 12, Article VIII, of that Constitution, giving to the circuit court supervision and control over proceedings before inferior tribunals, is authority for such court to issue the writ wherever it would lie from a court of Chancery or the King's Bench in England. The writ has never been employed in this State or Virginia to remove a case before trial from an inferior tribunal to a superior court for the purpose of testing the sufficiency of pleadings. Such practice, because of the great number of inferior tribunals including county courts, justices of the peace and town councils, would result in endless delays and impossible procedure.
Under Sections 2 and 3 of Chapter 110, Code, judicial action is reviewable by the writ. But if the case, matter or proceeding may be reviewed by appeal, writ of error or supersedeas, or in any other manner, certiorari will not lie. It is an extraordinary remedy used in cases where there has been an error in justice which cannot be reviewed and corrected by the ordinary forms of procedure. Poe v. Machine Works, 24 W. Va. 517; Welch v. County Court, 29 W. Va. 63; Humphreys v. County Court, 90 W. Va. 318; In re Arbitration between Carroll Hardwood Lumber Co. and Kentucky River Hardwood Co. 94 W. Va. 392.
Being of opinion that the circuit court is without jurisdiction to remove a case pending before an inferior tribunal for the sole purpose of reviewing the latter's ruling on the sufficiency of pleadings, we award the peremptory writ of prohibition.
Writ awarded.