State ex rel. Combs v. Boles

• Decision Date: 15 November 1966
• Docket Number: No. 12579,12579
• Citation: 151 W.Va. 194,151 S.E.2d 115
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Elmer COMBS v. Otto C. BOLES, Warden, West Virginia Penitentiary.

Page 115

151 S.E.2d 115

151 W.Va. 194

STATE ex rel. Elmer COMBS v. Otto C. BOLES, Warden, West Virginia Penitentiary.

No. 12579.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 4, 1966.

Decided Nov. 15, 1966.

Syllabus by the Court

1. In order to lawfully charge an accused with a particular crime it is imperative that the essential elements of that crime be alleged in the indictment.

2. Where an indictment charges the accused with the felonious and unlawful killing of another, but fails to charge that such act was done maliciously, the accused can be convicted of and sentenced for a degree of homicide no greater than voluntary manslaughter.

3. A plea of guilty is an admission of whatever is well charged in the indictment and the acceptance thereof by the court effects a conviction for that offense.

4. 'Malice express or implied is an essential element of murder of the first or second degree.' Point 1, Syllabus, State v. Bowyer, 143 W.Va. 302 (101 S.E.2d 243).

5. 'Where an accused is convicted of an offense punishable by confinement in the penitentiary and, after conviction but before sentencing, an information is filed against him setting forth one or more previous felony convictions, if the jury find or, after being duly cautioned, the accused acknowledges in open court that he is the same person named in the conviction or convictions set forth in the information, the court is without authority to impose any sentence other than as prescribed in Code, 61--11--18, as amended.' Point 3, Syllabus, State ex rel. Cobb v. Boles, 149 W.Va. 365 (141 S.E.2d 59).

6. Where an examination of the record clearly demonstrates that the trial court, in a proceeding on an information has substantially complied with the duly cautioned provision of Code, 1931, 61--11--19, as amended, the accused has not been deprived of his constitutional right to due process of law.

Stephen G. Young, Charleston, for relator.

C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., Charleston, for respondent.

CAPLAN, President.

In this original habeas corpus proceeding the petitioner, Elmer Combs, seeks a writ to compel the respondent, Otto C. Boles, Warden of the West Virginia Penitentiary, to release him from custody. The writ was granted on June 13, 1966, returnable on September 7, 1966, and counsel was appointed to represent the petitioner. On the return day the petitioner, through his counsel, appeared and filed his written motion for leave to amend the petition. The motion was granted and the case was continued to October 4, 1966. The Attorney General, appearing for the respondent, filed a return and demurrer to the amended petition. Counsel for the parties filed a stipulation wherein it was agreed that the exhibits filed with the respondent's return are true and that certified copies thereof should be considered as evidence by this Court. On October 4, 1966, the case was submitted for decision upon the aforesaid pleadings, the exhibits filed therewith and upon the arguments and briefs of counsel.

It is revealed by the record that on January 8, 1962, Elmer Combs was indicted by the grand jury attending the Circuit Court of Logan County, West Virginia, for the slaying of one Robert Huffman. The indictment was in the following words: '* * * that Elmer Combs on the 1st day of November, 1961, in the said County of Logan, feloniously and unlawfully did kill and slay one Robert Huffman, against the peace and dignity of the State. * * *'. It appears in the record of this proceeding that two additional felony indictments were returned against the petitioner by the same grand jury, but such indictments are not material to the issues presented in the consideration of this case.

The petitioner was subsequently arraigned and entered pleas of guilty to all three indictments. However, the court, noting that Elmer Combs did not have counsel, refused to accept the pleas and appointed counsel to represent him. On January 23, 1962, the petitioner was again arraigned on the same charges. In the colloquy between the court and the then defendant the court referred to the indictment, a portion of which is quoted above, as an indictment for murder. The judge informed the defendant that he could be sentenced to death as a result of his guilty plea to the indictment, thereby indicating that the charge of murder was contained therein. In reply to the court's inquiry as to his guilt or innocence the petitioner said: 'I want to say that I guilty; guilty as charged.'

On the same day the Prosecuting Attorney of Logan County filed an information alleging that the petitioner had been convicted of two prior felonies. Thereupon the court read the information to the then defendant and asked him if it had been explained by his counsel and if he understood it. Mr. Combs replied: 'I don't understand that part.' The court then inquired of the petitioner if he was the same Elmer Combs mentioned in the information. Before the petitioner was permitted to answer, however, the court fully informed him that he could refuse to answer or he could deny that he was the same person, and in either event a jury would be impaneled to make a determination of that question; or he could admit to being the same Elmer Combs. Mr. Combs said he did not want a trial on that issue and admitted that he was the same Elmer Combs mentioned in the information. During this time petitioner was represented by counsel.

Thereupon the court sentenced the petitioner on his plea of 'guilty as charged' to confinement in the penitentiary 'for the rest of his natural life'. On the same day, by a separate order, the court, by reason of the information and the petitioner's reply thereto, imposed a life sentence upon the petitioner and specified that such sentence shall run concurrently with the one imposed on the petitioner's guilty plea to the principal offense. As a result of these sentences the petitioner is presently in the custody of the warden of the West Virginia Penitentiary.

There are two principal grounds of relief upon which the petitioner relies. He contends that the language in the indictment under which he was convicted and sentenced to life imprisonment is insufficient to support a charge of murder; that in view of such language the charge could be no greater than voluntary manslaughter; and that the sentence imposed thereunder is therefore void and of no force and effect. His second ground of relief relates to the procedure pertaining to his sentence as a recidivist. The petitioner alleges that he was not duly cautioned in accordance with the provisions of Code, 1931, 61--11--19, as amended.

The petitioner shot and killed his uncle, after which he ladened his body with rocks and cast it into a well. For this crime the State charged by indictment that the petitioner 'feloniously and unlawfully did kill and slay one Robert Huffman'. This is the indictment under which the trial court sentenced the petitioner to life imprisonment upon the plea, 'guilty as charged'.

It has long been recognized by this Court and by the Courts of other jurisdictions that malice is an indispensable element of the crime of murder. This was succinctly stated by the Court in State v. Jones, 128 W.Va. 496, 37 S.E.2d 103, as follows: 'Malice, express or implied, is an essential element of murder in the second degree, and if absent the homicide is of no higher grade than voluntary manslaughter.' In clear and unequivocal language Point 1 of the Syllabus of State v. Bowyer, 143 W.Va. 302, 101 S.E.2d 243, says: 'Malice express or implied is an essential element of murder of the first or second degree.' See also State v. Morris, 142 W.Va. 303, 95 S.E.2d 401; State v. Roush, 95 W.Va. 132, 120 S.E. 304; State v. Galford, 87 W.Va. 358, 105 S.E. 237; State v. Panetta, 85 W.Va. 212, 101 S.E. 360; Scott v. Commonwealth, 143 Va. 510, 129 S.E. 360; and Thomas v. Commonwealth, 186 Va. 131, 41 S.E.2d 476.

After defining first and second degree murder, it is said in Code, 1931, 61--2--1, that it is not necessary to set out the manner or means by which the homicide was caused. That code section then continues: '* * * but it shall be sufficient in every such indictment to charge that the defendant did feloniously, wilfully, maliciously, deliberately and unlawfully slay, kill and murder the deceased.' Considering further statutory provisions, is is worthy of note that the suggested form of a murder indictment includes the words 'wilfully, maliciously, deliberately' Code, 1931, 62--9--3. Furthermore, the indictment in the case at bar is in the exact language as that contained in the statutory form for an indictment for voluntary manslaughter. Code, 1931, 62--9--4.

While an indictment does not have to be in the exact form as that...