Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1900-05-19

nrSt time II was suggested they q
been inundated. They gave their
testimony without restraint. He over
ruled the motion for a new trial and
then read the following opinion:
State VS.. Mooney and Friday; on
motion for a new trial.
The prisoners on being arraigned
upon the Indictment found against
them, moved the court to send them
to a justice for preliminary examina-
ton. This motion was refused, and
that ruling of the court is now as
signed as a ground for a new trial.
Their claim to@a preliminary exam
i~nation, previous to trial, seems to rest
on a statute passed by the legislature
of this State on the Sd day of April,
1873 This act provides: Before any
person charged with a felony is tried
before a circuit court be shall be ex-
amined before the county court, unless
he valves such examination by his as
sent entered of record.
This act continued in force until the
23d day of December, 1875, on which
day it was repealed by chapter go, of
the acts of 1875. During its brief exist
nee it came before our Supreme Court
for consideration in four cases, viz:
Buskirk VS.. Judge Ward, Z w. Va, 81;
State VS.. Stewart, Z w. Va, 731; State
VS.. Abbot, 8 w. Va, TAG, and State VS..
Strauder, 8 w. Va, CSC.
In this last case, yet generally re-
membered in this county, the act in
question saved Strauder from the gal
lows. Nothing, however, vas decided
in any of these cases tending to throw
any light IN the ruling under conSd-
Grafton, further than to show, IS was
decided in the Strauder case, that no
n could be tried for a felony while
that act was in force, without a pre-
liminary examination, if n was de-
manded.
The act providing for an eXamina-
ton before trial by the County Court,
did not in terms repeal any other stat
utory provisions, nor did it do so by
implication. 1t simply provided for a
special or additional examinatioE, s..
fore trial, of all felonies. Such exam
nation was to take place before the
County Court, then a recently created
tribunal. Its repeal two and two
thirds years after enactment put an
end to this special preliminary exam
ination before the County Court, and
left the law as to examination, indict-
ment and trial, as it was before the en-
actment, and substantially, if not
identically, as they are now.
Not only has the statute providing
for such preliminary examination been
repealed, but. the County Court, which
had exclusive jurisdiction to hold it,
has been abolished. This, then, would
seem to end, so far as that statute and
the County Court are concerned, all
possible contention that a preliminary
examination is a legal prerequisite to
a trial
And such a contention cannot be
based upon our present statute, which
is chapter 156 of the code of 1891, re-
lating to arrest, commitment and bail.
This chapter is identical with chapter
1876 of the code of 1868, except that
there is omitted from it section 10,
permitting certain misdemeanors, like
assault and battery, to be settled by
the parties themselves, and not to be
prosecuted to indictment and trial
when so settled. Chapter 156 Of the
code was not repealed expressly, or by
implication, by the act OF 1873, pro-
viding for special examination by the
County Court. The arrest, commit
ment and bail, and examination before
a justice provided for in chapter 1856,
of the code of 1868, continued in force
during the existence of that special
statute, as it had before, and does to-
day, in the same chapter in the code
of 1891.
There is then certainly no law now
requiring preliminary examination be-
fore trial On the other hand, however,
Their is now express statutory author
ity for proceeding to indictment and
trial without preliminary examination.
This is very evident form. The statutes
in force now relating to the finding of
indictments and to trials thereon, Sec.
l Of Chap. 1853 of the Code of 1891, in
express terms permit the finding of an
indictment without IN examination.
It's last clause reads. "Apd the indict-
ment may be found u the first in
stance whether the accused has been
examined or committed by a justice, or
not" Now the indictment having been
found, the next step is to proceed to
trial. This is apparent from Sec. l of
Chap. 159 of the Code of 1881, the first
sentence of which reads: when an in
dictment is found in the Circuit Court
of any county against a person for a
felony, the accused, if in custody, or If
he appear in discharge of his cogQiz-
ance of voluntarily, shall, unless good
cause be shown for a continuance, be
tried at the same term"
These two provisions of Secs. / of
Chap. 1s9 of the Code, as read, seem to
me to be conclusive against the claim
that no trial can occur until after pre-
liminsry examination. There was no
error in refusing prisoners motion for
a preliminary examination.
l have not referred to the Virginia
cases, because the Virginia statutes diff
fer essentially from ours. Virginia has
no statute like the last clause of Sec. 1
of Chap. 15S, permitting an indictment
to be found without an examination.
That provision first appears as Virginia
law in the Code of West Virginia of
1868.
Counsel, also, urge as another ground
for a new trial that the court erred in
permitting too broad an inquiry into
the character and occupations of sew
eral of the defendants witnesses. On
the question, how far inquiry may go,
to affect e~redibility of witnesses, the
rulings of the courts are legion, all,
however, ~conceding that much is left to
the discretion of the trial judge.
GreepIeaf Save n Green Sec 44S1