Opinion
No. 13621
Decided December 16, 1975.
Relator brought original proceeding in prohibition seeking to prohibit circuit court judge from proceeding with trial on indictment charging him with felonious assault and assault in pursuance of combination or conspiracy.
James McCall Cagle for relator.
Chauncey H. Browning, Attorney General, Richard E. Hardison, Deputy Attorney General, Fredric J. George, Assistant Attorney General, for respondent.
In this original proceeding in prohibition the relator, Denny Smith, seeks to prohibit the respondent, Harvey Oakley, Judge of the Circuit Court of Logan County, from proceeding with the trial on an indictment charging said relator with a violation under W. Va. Code, 1931, 61-6-7, sometimes referred to as the Red Men's Act.
In an indictment returned by the grand jury serving the Circuit Court of Logan County, it was charged that the relator, Denny Smith, together with five other named defendants, "did unlawfully and feloniously combine, conspire and confederate together for the purpose of inflicting bodily injury upon one Hubert Evans and in pursuance of said combination, conspiracy and confederation . . . the said Denny Smith [and other named defendants] did unlawfully, willfully and feloniously beat, wound and inflict bodily injury upon him, the said Hubert Evans . . . ."
The issue in this proceeding concerns the constitutionality of W. Va. Code, 1931, 61-6-7. The Court holds that in the above circumstances the decision of this case is governed by the principles enunciated and applied in Clayton Bill Pinkerton, et al. v. P. Douglass Farr, Judge of the Circuit Court of Pleasants County, W. Va., ___ W. Va. ___ (Decided December 15, 1975). Accordingly, W. Va. Code, 1931, 61-6-7 is declared to be unconstitutional and the relief prayed for is granted.
Writ awarded.