Scott v. Harshbarger
| Decision Date | 21 May 1935 |
| Citation | 180 S.E. 187,116 W.Va. 300 |
| Parties | SCOTT v. HARSHBARGER. |
| Court | West Virginia Supreme Court |
Submitted April 11, 1935.
Syllabus by the Court.
1. An indictment, based upon a from prescribed by statute, which omits to charge one of the material elements of an offense as defined by statute, is void.
2. The writ of habeas corpus lies to effect the release from imprisonment of an accused who is confined by reason of a conviction and sentence under a void indictment.
Habeas corpus proceeding by Clyde H. Scott against Ira J Harshbarger, sheriff of Cabell county.
Writ awarded.
F. W Riggs, H. H. Darnall, and L. W. Blankenship, all of Huntington, for petitioner.
E. E Winters, Jr., and T. W. Peyton, both of Huntington, for respondent.
Clyde H. Scott brought this proceeding in habeas corpus against the sheriff of Cabell county alleging that he is restrained in custody by virtue of a conviction and sentence of the common pleas court of Cabell county, based upon a void indictment for the crime of abortion. The second count in the indictment charged a prior conviction for a felony, but with that we are not here concerned. The charging part of the first count in the indictment, under which Scott was convicted and sentenced, and which he now says is void because it charges no offense, is as follows: "Did unlawfully, feloniously and wilfully employ and use upon the body and womb of one Aletha Henchman Adams, a female, being then and there pregnant with child, a certain instrument, the name of which instrument is to the grand jurors unknown, with intent then and thereby to procure the miscarriage of the said Aletha Henchman Adams, it not being then and there done by Clyde H. Scott in good faith with the intention of saving the life of such woman or child, against the peace and dignity of the state." This indictment follows exactly the form prescribed by Code, 62-9-5. The statutory form however, omits the charge, "and shall thereby destroy such child, or produce such abortion or miscarriage." The language last quoted describes an element of the offense as it is defined by 61-2-8, Code. The question presented for decision is whether the Legislature had power to prescribe a form of indictment that omits to charge one of the elements of the offense for which the accused is prosecuted. The secondary question is whether the form of indictment prescribed by the statute, if bad, is simply irregular so that the advantage is to be taken only by writ of error, or whether the omission is such as to render the indictment totally void, so that the conviction and sentence are absolute nullities and habeas corpus will lie.
Undoubtedly there are very broad powers vested in the Legislature with respect to the simplification of common-law forms of indictments. Many cases decided in this state and cited in the exhaustive brief of able counsel for the respondent sustain this power of the Legislature. Nevertheless, the exercise of this right of the Legislature is limited by two provisions found in our Constitution. Section 4 of article 3 contains the following language: "No person shall be held to answer for treason, felony or other crime, not cognizable by a justice, unless on presentment or indictment of a grand jury." Section 14 of the same article, referring to trials for "crimes, and misdemeanors," contains the following: "In all such trials, the accused shall be fully and plainly informed of the character and cause of the accusation,...
To continue reading
Request your trial