Elihu Gregg v. The State.

• Decision Date: 31 August 1869
• Parties: Elihu Gregg v. The State.
• Court: West Virginia Supreme Court

3 W.Va. 705

Elihu Gregg

v.The State.

Supreme Court of Appeals of West Virginia.

August Term, 1869.

1. It is the duty of the courts to separate witnesses, either in civil or criminal cases, if asked by either party, but the rule does not apply to attorneys or officers of the court.

2. In a trial upon an indictment for arson, the witnesses for the State, at the instance of the prisoner, were sworn and sent out of the court room, and at the same time the prisoner stated that he had no witnesses summoned. After the witnesses for the State were examined, a party was called as a witness for the prisoner who stated that he had been iu the court room during a part of the trial and heard a part of the evidence, and it being objected that he was an incompetent witness, the court sustained the objection. Held:

I. That the witness was improperly excluded.

II. That where a witness has been sworn and sent out, and by accident or design comes into the court room during the progress of the trial, he is not, for that reason, to be excluded, but it is matter going to his credit with the jury, of which they should be the sole judges, under the circumstances. J

3. A party is indicted for burning a court house containing the records of the county. On the trial evidence is introduced by the State, to prove that a decree entered in the records which were burned, was had for the sale of the real estate of the accused, and that he said, when speaking about this decree " that he had three ways of heading the K. lawyers;" and also that he said that he had not got justice in K. in the suit about which the decree was had; and to another witness prior thereto, that the court house ought to be burned, and he would do it if the suit went against him. The defendant then offered to introduce, as rebutting testimony, a certificate of protection in bankruptcy granted to him, which the court, on objection being made, refused to permit to be read in evidence. Held:

That the court erred in the refusal, as the certificate should have gone to the jury to explain, as far as it might in the minds of the jury, the previous declaration of the prisoner that "he had three ways of heading the K. lawyers."

4. An offense punishable with death prior to April 1st, 1869, (the time when the new code took effect) was committed prior thereto, but the accused was not indicted and tried until after that date. The accused did not elect to be tried or punished by the law that took effect April 1st, 1869, and which provides that the jury may find a verdict and attach the death penalty thereto, or fix the term of imprisonment in the penitentiary for life, until after verdict rendered; and it is held that he ought to have elected to be tried and punished by the law as it existed subsequently to April 1, 1869, or the punishment will be determined according to the law as it existed at the time the offense was committed; and this election must be made before verdict rendered. And the jury having found a verdict of guilty, the court must sentence the accused according to the law existing at the time the offense was committed.

Elihu Gregg was indicted by a grand jury of Preston county, on the 12th day of July, 1869, for burning the court house of that county, whereby all the records and papers in the clerk's and recorder's offices of that count}' were totally destroyed, and also the dwelling house of one Peter Voltz.

The indictment contained four counts; the first alleged that the defendant, on the night of the 7th of March, 1869, and about the hour of 1 o'clock in the morning of that day, did feloniously, &c, set fire to and burn a certain dwelling house of one Peter Voltz, wherein Voltz and his family were then and there residing at the time of the burning.

The second count alleged that, the defendant did, on the night, &e., above mentioned, burn a certain house called and known as the court house of Preston county, which court house was then and there the dwelling house of one Peter Voltz.

The third count alleged that, the defendant did burn a certain building known as the public courthouse of Preston county, and that by the burning of the same did set fire to and burn a certain dwelling house of one Peter Voltz, situated in the basement story of the court house; Voltz and his family residing and sleeping at tne time in his dwelling house in the basement story of the court house.

The fourth count alleged that, the defendant burned the court house of Preston county, and that by the burning of the same a certain dwelling house of one Hiram Vankirk, adjacent to the court house, was burned.

The defendant was put upon his trial and pleaded not guilty, and on the 19th of July, 1869, the jury brought in a verdict of guilty.

The defendant moved the court to set aside the verdict and grant a new trial, which was overruled, and the court senteuced the defendant to be hanged on the 3d day of September, 1869.

During the progress of the trial the defendant took eight bills of exception, but as they were not all considered by. this court, only those considered need be here stated.

The third bill of exceptions states that the defendant "having no witnesses summoned for the trial, ''' moved, after the jury was sworn, to exclude the witnesses for the State from the court room, and the court ordered " the witnesses for the State and the defendant" to retire from the court room. After the State had closed its evidence, the defendant called as a witness one Henry Boger, who was sworn to give evidence in the cause, and the prosecuting attorney inquired of him if he had been in the court room during the trial, to which he answered that he had been during a portion thereof; and on objection to the witness testifying being made by the prosecuting attorney, the court excluded him; and the defendant excepted!

The fourth bill of exceptions is as follows: "Be it remembered, that upon the trial of this cause, and after the evidence on part of the State had been closed; and after the State, for the purpose of proving the motive of the defendant for committing the crime for which he stands charged, had introduced James II. Carroll as a witness, whose testimony tended to prove that he was an attorney at law, that he had obtained a judgment against the defendant, Gregg, for one Samuel Summers; that he had brought a chancery suit to enforce said judgment; that there had been a decree in said suit directing the sale of defendant's real estate, and witness was appointed by decree, a commissioner for the purpose of making sale; that witness had advertised the said land to be sold at the front door of the court house of Preston county, on Monday, March 8th, 1869; and after the State introduced Abraham Lee as a witness, whose testimony tended to prove that the defendant had said to witness, when speaking about his suit with Summers, and about defending said suit, 'I have three ways of heading the Kingwood lawyers;' and after the State had introduced Noah A. Tichenell, whose testimony tended to prove, that in a conversation which defendant had with witness, defendant had said that he had been badly treated in the Summerssuit; that he had not got justice in Kingwood, and the town and court house ought to be burned; and said, with an oath, that he would do it if the suit went against him; and after the order in the suit in case of Summers vs. Gregg, directing the sale of defendant's land, had been introduced in evidence, to wit, in these words: 'West Virginia, ss: ' &c.

" The defendant, for the purpose of rebutting the testimony so introduced on the part of the State, offered in evidence to the jury his certificate of protection in bankruptcy, which, with the endorsement thereon made, is in these words: 'Certificate of Protection, ' &c [which certificate was dated the 16th of November, 1868, to which the attorney for the State objected, as inadmissible as evidence to the jury, because the same wasirrelevant and not properly authenticated; and the court sustained the said objection, and ruled out said evidence, so offered on part of the defendant, and would not permit the same to be read in evidence to the jury;" and the defendant again excepted.

The fifth bill was taken, because the court refused to instruct the jury to disregard the evidence on behalf of the State under each and every one of the counts in the indictment, because the same were faulty and bad, and because they did not charge any crime or offense.

The seventh bill was taken, because after the verdict had been rendered, the defendant moved the court to arrest the judgment and set aside the verdict, because the jury did aot find or ascertain in their verdict what punishment was to be inflicted on the defendant; because the court could not render any judgment or impose any sentence upon the defendant, the jury having failed to ascertain what punishment was to be inflicted; which motions the court overruled.

The eighth bill was taken, because the court sentenced the defendant to the death penalty.

The defendant obtained a writ of error and supersedeas from this court.

Keck and Davenport for the plaintiff in error. Attorney General Caldwell for the State.

Maxwell, J. I shall first consider the question made iu the third assignment of error, arising on the defendant's third bill of exceptions. This bill of exceptions states that, "after the jury was sworn in this cause, the defendant having no witnesses summoned for the trial, moved the court that the witnesses for the State be excluded from the court room, and thereupon the court ordered the witnesses for the State and the defendant to retire from the court room and afterwards, and during the progress of the trial, the State having closed the evidence on its part, the defendant, to maintain the said issue on his part, called as a witness in his behalf Henry Boger, who being sworn to give evidence in the case, the attorney for the State asked said witness if he had been iu the court room during the...