CHARLES L. CROOKHAM v. THE STATE.

• Decision Date: 31 July 1871
• Citation: 5 W.Va. 510
• Parties: CHARLES L. CROOKHAM v. THE STATE.
• Court: West Virginia Supreme Court

5 W.Va. 510

CHARLES L. CROOKHAM

v. THE STATE.

Supreme Court of Appeals of West Virginia.

July Term, 1871.

1. The record of the finding of an indictment under the statute for maliciously shooting, stabbing, cutting, &c, is as follows: "An indictment against Charles l. Crookham, malicious stabbing, a true bill," and is held to be sufficient.

2. A count in an indictment under tin; statute against malicious shooting, &c, in the language of the statute, is held to be sufficient..3. Under the statute, Code p. 718, sec. 7, the court may discharge the jury when it appears that they cannot agree in a verdict, without the consent of the prisoner.

4. Two witnesses testified that they heard the deceased calling for help, (after dark) and on inquiring of him what was the matter he answered "that somebody was killing him, and was cutting him with a knife," and said that it was the prisoner, naming him; and also answered, the prisoner, naming him," has stabbed me; he has killed me; for God's sake run for the doctor," and it was not error in the court below to refuse to exclude the words which included the prisoner's name, as the declarations of the deceased were a part of the res' gestae and admissible.

5. It was not error to exclude testimony offered by the prisoner, to the effect that another and a different person from himself had made threats to kill the deceased, just before the commission of the offense with which he was charged, and that immediately after the offense such other person left the country and has not since been heard from.

6. A witness is asked if, "after the deceased declared he was dying, and while he was dying, did he make any declaration as to how he received the wounds and by whom they were inflicted; if so, what those declarations were?" To which the answer was," none except he said that it was hard to die by the hand of another and leave his family." Held:

I. It was error to admit such declaration in evidence as part of the res gestce because too remote from the transaction.

II. It could not be received as a dying declaration, because the death of the deceased is not the subject of the charge, and the circumstances of the death are not the subject of the dying declarations.

Judge Moore had been engaged as counsel in the court below.

7. If a defendant fails to appear according to the terms of his recognizance, he cannot claim a discharge by reason of three regular terms having been allowed to pass without a trial.

This case arose in Mason county. The indictment was found in February, 1869. A trial was had in May, 1869, and the jury failing to agree, were discharged. A further trial was had in September, 1870, and the defendant was found guilty and sentenced to two years confinement in the penitentiary. The first count in the indictment, which was held to be sufficient, is as follows:

"The jurors of the State of West Virginia, in and for the body of the county of Mason, and now attending said court, on their oath present that Charles L. Crook ham on the

day of November, 1868, in the said county, in and upon one Samuel Finimore did make an assault, and him, the said Samuel Finimore, feloneously and maliciousW did stab, cut, and wound with intent, him, the said Samuel Finimore, then and there to maim, disfigure, disable, and kill, against the peace and dignity of the State of West Virginia.''

All other points at issue will be found amply stated in the opinion of Maxwell J.

The defendand brought the case here by writ of error.

D. Paisley and Knight for the plaintiff in error. The Attorney General for the State.

Maxwell j. Crookham was convicted in the Circuit Court of Mason county, upon a charge of feloniously and maliciously stabbing, cutting and wounding one Samuel Finimore, with intent to maim, disfigure, disable and kill, and was sentenced to the penitentiary for two years, and the case comes here to be reviewed on writ of error. The record shows that the finding of the indictment by the grand jury was entered upon the record of the court," An indictment against Charles L. Crookham, malicious stabbing: A true bill." There was a motion made to quash the indictment, because there was not a proper entry made of the finding thereof by the grand jury, which motion was overruled, and this is the first ground of error assigned here. It is insisted that the entry should have been upon the record, an indictment for "a felony." If any person maliciously shoot, stab, cut or wound another, with intent to maim, disfigure, disable or kill, he commits a felony. All malicious stabbings are felonies, hut all felonies are not malicious stahbings. The words "malicious stahbings " used in the record of the finding of the indictment much more nearly indicate the character of the offense charged in the indictment than the word "felony" would, so that the court did not err in refusing to quash the indictment for the supposed defect in the record. The second ground of error assigned is that the court erred in refusing to quash the first count in the indictment. The count is in the precise language of the statute and is sufficient. The third and fourth causes of error assigned is that, a former jury had been impanneled to try the accused, which jury was discharged without his consent,...