“Where multiple homicides occur even though they are in close proximity in time, if they are not the result of a single violative act of the defendant, they may be tried and punished separately under the Double Jeopardy Clause of *395 Article II, Section 5 of the West Virginia Constitution."
How later courts described this case
- “Where multiple homicides occur even though they are in close proximity in time, if they are not the result of a single violative act of the defendant, they may be tried and punished separately under the Double Jeopardy Clause of *395 Article II, Section 5 of the West Virginia Constitution."
- discussing advantages of procedural joinder rule
- procedural joinder of offenses rule
Written by the judges who cited it.
The opinion
Neely, Justice,
dissenting:
The majority opinion in this case causes the pronouncement of the historian, James Morris, about the early speeches of Mr. Gladstone to leap instantly to mind: “They were at the same time learned and incomprehensible.”
After several readings of the majority opinion it appears to me that it stands for the following propositions: (1) the same transaction test is a good idea and should be part of our law, in fact, it has been applied in the past and will be applied in the future; (2) people who commit multiple murders are not nice people; (3) the same transaction test is either procedural or constitutional depending on the judge who writes the opinion; and (4) this particular multiple murderer is not a nice person and, therefore, we will not apply the same transaction test in his case so that we can punish him some more.
*354 I have no particular quarrel with the Court’s sentiment concerning this defendant; certainly, multiple murderers have never been among my favorite defendants. My primary objection comes from some romantic notion which I learned in law school about the law being uniformly applied to all persons similarly situated. The protection in our legal tradition against vexatious criminal litigation is certainly embodied in the federal and state constitutional provisions on double jeopardy. I have never found any magic in the term “constitutional” since the preeminent axiom of all jurisprudence is that no rule determines its own application. The fact that one judge calls something unconstitutional does not mean that the next judge may not call it constitutional. As I pointed out in State ex rel. Johnson v. Hamilton, 164 W.Va. 682 , 266 S.E.2d 125 (1980) the English have accomplished the same result concerning the same transaction test under the doctrine of autrefois convict.
It is also worth noting that in the case before us the defendant made a motion to have all of the indictments joined in one trial so that he would be required to go through the trial process only once. I recognize that today the courts are so outrageously capricious that it is highly likely that any conviction for a heinous crime like multiple murders will be overturned a decade from now by an arbitrary judge applying some new permutation of “constitutional principles.” The prosecution, indeed, has some guarantee that with four separate convictions the process of releasing this defendant once more upon an unsuspecting world because of a new legal theory will be reduced by a factor of four. That, however, is the fault of our current system of criminal jurisprudence which, I might point out, has not in any regard been helped in the last several years by the majority of this Court. It is not the defendant’s obligation to provide the State or the courts with an insurance policy against his ultimate release by judicial caprice, and multiple murderers have as much right as drunk drivers to protection against vexatious litigation.