Charles Lemons v. The State

• Citation: 4 W.Va. 755
• Parties: Charles Lemons v. The State
• Decision Date: 31 January 1870
• Court: Supreme Court of West Virginia

4 W.Va. 755

Charles Lemons

v.The State

Supreme Court of Appeals of West Virginia.

January Term, 1870.

1. When the constitution of the State requires an indictment to conclude in certain form and words, the indictment is not good unless it concludes in the exact language of the constitution.

2. A prisoner, by failing to demur, or moving to quash, or moving in arrest of judgment, on an indictment not in the exact language required by the constitution, cannot be held to have waived his night to make objections to the indictment in the appellate court; the right being a constitutional, and not a personal right.

3. When the character of a witness for truth and veracity has been impeached, the evidence of a witness who has been acquainted for a long time with the impeached, and has never heard the character of said witness for truth and veracity questioned, is admissible, although said witness may never have heard any person or persons say anything whatever concerning said impeached witness' character.

Charles Lemons was indicted in the circuit court of Greenbrier county, on the 12th day of June, 1869, for stealing a horse from Daniel Rogers. The indictment concluded "against the peace and dignity of the State of W. Virginia." On the 13th day of June, 1869, the prisoner was arraigned, and pleaded not guilty, and the jury found him guilty and fixed his term of imprisonment at two years in the penitentiary.

During the progress of the trial, numerous exceptions were taken, both to the introduction and exclusion of evidence, and also to many proceedings in the case, all of which were properly certified and ordered to be made part of the record; but nearly all of the exceptions were waived by the counsel on the trial of the case before this court. The case was heard upon the two following exceptions: 1.The indictment was not good because it did not conclude 'against the peace and dignity of the State of West "Virginia.'" 2. "Proper evidence was rejected."

During the progress of the trial below, Thomas McAllister was introduced by the prisoner, to sustain the character of N. A. McDowell, who had been impeached by the State; the witness, in answer to questions, said, "that he was acquainted with the reputation of N. A., McDowell, among her neighbors, for truth and veracity, and also, that he had never heard her character for truth questioned; that he had never heard any one say anything about her character for truth and veracity, though he had known her for fifteen years;" but the court rejected this testimony, and refused to let it go to the jury; to which ruling the counsel for the prisoner excepted; and it is upon these exceptions that the case is decided in this court.

Jas. W, Davis for the plaintiff in error. Attorney-General Caldwell for the State.

Berkshire, J. This is a writ of error to the judgment of the circuit court of Greenbrier county. The defendant, now plaintiff in error, was indicted, tried, and convicted of felony, for the larceny of a certain horse of the value of 150 dollars, belonging to Daniel Rogers.

The defendant, without any demurrer or motion to quash, pleaded not guilty to the indictment, and no motion was made in arrest of judgment. He, however, moved the court to set aside the verdict and grant him a new trial, upon sundry grounds set forth in the bill of exceptions taken to the opinion of the court for overruling the motion.

The first error assigned and insisted on is, an objection to the indictment because it fails to conclude, against the peace and dignity of the State of West Virginia, as required by the provisions of the constitution of the State.

The fifth section of the first article of the constitution provides that indictments shall conclude, "against the peace and dignity of the State of West Virginia." It will be seen, therefore, that the precise words for the conclusion of all indictments, are prescribed in this provision, and the quotation marks, which are superadded, would indicate a purpose that a strict and literal compliance in the exact language of the constitution would be required. The conclusion of the indictment in the present case is, "against the peace and dignity of the State of W. Virginia." This is not, therefore, a literal compliance, and consequently is insufficient, in my judgment, to satisfy the constitutional requirement. But considering the indictment to be bad, it was nevertheless insisted, on behalf of the State, that by failing to demur or move to quash or in arrest of judgment, the defendant must be deemed to have waived all objections to the indictment, and is thereby excluded from making, for the first time, the objection here. This, it must be conceded, presents a very grave and difficult question; and in my examination of the authorities on this point, I have not found them numerous, nor entirely satisfactory and decisive.

In Bex v, Cook, 1 Russel & Ryan, p. 176, the accused was indicted for larceny. The indictment did not conclude contra pacetn, but against the form of the statute in such case made and provided. The prisoner being convicted, moved in arrest of judgment, because of the insufficiency of the indictment in not concluding contra pacem. It was held by nine of the twelve judges constituting the court, that the indictment was bad, and the judgment was accordingly arrested. Chief Justice Mansfield, Lord Ellenborough, and Justice Wood, expressed doubts, but did not formally dissent from the judgment entered.

In Matthew's case, and Garner's case, 18 Graft., 989, it was held that, "anything which is good cause for arresting a judgment, is good cause for reversing it, though no motion in arrest be made." In these cases, the defendants, Matthews and Garner, were tried and convicted for murder, (the former in the first and the latter in the second degree), upon an information filed in the county court of Fairfax county, by the attorney for the commonwealth, upon his oath of office. They elected to be tried separately, and each of them pleaded not guilty to the information. At the instance of the prisoners, they were remanded to, and tried in, the circuit court. On the trial of...