State v. Loveless

*471 Riley, Judge,

concurring:

After consideration of the record in this case and the opinion of the Court I am prompted to write this separate memorandum recording my concurrence in the holding of the Court in reversing the judgment of the Circuit Court of Logan County, setting aside the verdict of the jury, and granting the defendant a new trial. Specifically, I concur in all three points of the syllabus, but I do not agree with the position taken in the opinion of the Court that the trial court did not abuse the sound discretion, which is vested in every trial court in this State, in refusing to grant the defendant a continuance. As the well written opinion of the Court sets forth in detail many of the facts upon which this concurrence is based, it will be necessary to restate them in this note only in a rather general way.

With the greatest of deference to the members of this Court, who have joined in the opinion of the Court and to the able and experienced Judge of the Circuit Court of Logan County, I feel it my duty to state that the conditions under which the defendant Loveless was tried, and the spirit of hostility, which evidently pervaded the courtroom of the Circuit Court of Logan County before and during the trial, resulted in the defendant being tried for a crime, which involved his very life, under conditions and in circumstances which render it very difficult for this Court to determine whether the defendant had, or could have had, a fair and impartial trial, such as is consonant with our American system of justice. At least in a case such as this we dare not hazard a surmise or a guess. This Court should ever be on guard to prevent the trial of a defendant in a criminal case, especially a case involving a crime such as this which is revolting to the minds of respectable citizens, where there is an atmosphere of hostility against the defendant, or where the trial is not conducted with the greatest quietness and decorum.

The record in this case discloses that the Honorable John T. Copenhaver, Mayor of the City of Charleston, a city many miles distant from the place of the trial, had *472 designated the defendant prior to the trial as a “racketeer”, which designation was carried in newspapers of general circulation in Logan County, namely, The Charleston Gazette and The Bluefield Daily Telegraph, and articles prejudicial to the defendant also had appeared in The Logan Banner, a newspaper published in Logan County, and widely circulated in that county. Of these articles the one most prejudicial to the defendant was published by The Logan Banner on June 8, 1953, about one week prior to the date upon which the defendant was to be tried. In this article under the headline “SPECIAL GRAND JURY CONVENES M,URDER INDICTMENT IS SOUGHT BY STATE”, the Judge of the Circuit Court of Logan County is quoted as charging the grand jury: “Some have been tried (referring to the five other dé-fendants, who were indicted at the regular session of the grand jury in connection with the Reed case) and some have pleaded. It is imperative that this case be completed this term of court. I have called this special grand jury in order to offer the man [Loveless] a speedy trial.”

Under Article I of the Amendments to the Constitution of the United States (the First Amendment) and West Virginia Constitution, Article III, Section 7, the provisions of the United States and the State Constitutions, which provide for freedom of the speech and press, the above-mentioned newspapers had the constitutional right, and because of the general interest which their readers would have in the trial of this case, they had a moral right to print all the news, including the interview with the Mayor of the City of Charleston, and the charge of the Judge of the Circuit Court of Logan County. This Court, of course, should not be concerned with the propriety of Mayor Co-penhaver’s statement to the newspapers, but the interview having been given, the newspapers certainly had the right to publish it, notwithstanding such publication would, in view of the wide circulation of the newspapers involved, be dangerously apt to create prejudice in the minds of potential jurors against the defendant Loveless. Loveless was being tried in Logan County for being an accessory *473 before the fact to an alleged ruthless, unconscionable and cold-blooded murder of a woman in connection with an alleged robbery. The question before the Circuit Court and the jury of Logan County was whether he was guilty of that crime, and that crime only. That he may have been a notorious racketeer, having been engaged in unlawful activities in the City of Charleston, had no connection-with the crime with which he was charged, and his designation as such racketeer was, in my opinion, prejudicial to defendant receiving a fair and impartial trial.

That a spirit of hostility and high-strung human emotions prevailed in the courtroom at the time the defendant was tried clearly appears from the record. At the trial of the other defendants an altercation occurred between one Beatty, at whose apartment Mrs. Reed was killed, and a prominent member of the Logan County bar, which, the motion for a continuance discloses, resulted in peace officers drawing their guns, and at the trial of this defendant deputy sheriffs stood at every door of the courtroom, and in the presence of the Judge and of the very jury which tried* and convicted this defendant, searched every person, witnesses, attorneys and spectators alike, who entered the courtroom.

I do not by this memorandum intend to criticize or condemn the motives which the Sheriff of Logan County had in authorizing the activities of his deputies. He evidently believed he was doing his sworn duty in protecting the life of the Circuit Judge, who was the recipient of a threatening letter in connection with the Loveless trial. I do, however, think that the searching of persons by deputy sheriffs in the circumstances portrayed by this record was dangerously apt to impress the jury that Loveless was a dangerous criminal,-whose friends might resort to violence against the constituted authorities in order to free him. I simply say that such actions on the part of constituted authorities, though prompted by the highest motives, have no place in any courtroom, where the rights, liberties, and even the life of a defendant are concerned. Whether a search should have been made of those enter *474 ing the courtroom on the day of the trial is not for me or this Court to say, but, if such search was required, it could have been made outside the doors of the courtroom and outside the presence of the jury.

That the defendant Loveless, as the trial court stated in its charge to the grand jury, was entitled to a speedy trial, cannot be gainsaid. In this regard I can do no better than to quote from the opinion of this Court in the case of State v. Jones, 84 W. Va. 85 , 99 S. E. 271, 273 , wherein the Court speaking through the Honorable Charles Wesley Lynch, a former eminent member of this Court, said: “* * * Embedded in the common law of the land is the principle of a fair and impartial trial alike in civil and criminal cases. To the extent reasonably avoidable no innocent person should be permitted to suffer the stigma and punishment incident to an offense of the commission of which he is not guilty, is an equally familiar and often reiterated legal principle. The duty to accord speedy trials is founded in sane reason and sound law, constitutional and and statutory. But speed ought not to be permitted to work injustice, and, lest .it should do so, the provisions therefor, as we have seen, are qualified in the Constitution by the significant phrase, ‘without unreasonable delay,’ and in the statute by the like phrase ‘unless good cause be shown for a continuance’.”

I am well aware that the principle that a motion for a continuance is addressed to the sound discretion of the trial court in all the circumstances of the case is well settled in this jurisdiction, but “the discretion of trial courts with regard to continuances must be exercised with due regard to the constitutional guarantee of a fair and impartial trial to one accused of a crime, and the right to call for evidence in his favor.” 4 M. J., Continuances, Section 2. This sound discretion, with all deference, I say has been abused.

Judge Lovins has authorized me to say that he joins in this concurrence.