State Of West Va. v. Burnette, (No. 8524)
| Citation | 118 W.Va. 501 |
| Decision Date | 03 April 1937 |
| Docket Number | (No. 8524) |
| Parties | State of West Virginia v. William Burnette |
| Court | West Virginia Supreme Court |
State of West Virginia
v.
William Burnette
Supreme Court of Appeals of West Virginia.
Submitted February 24, 1937.
Decided April 3, 1937.
1.Indictment
Under Code 62-9-1, a prosecuting attorney should sign an indictment on its face as indicated by that section, but the provision is directory merely. Failure of compliance there with will not vitiate an indictment.
2.Indictment
Under Code 62-9-1, an indictment must be signed on the back by the grand jury foreman and attested by the prosecuting attorney. The requirement in each particular is mandatory. In this case, the failure of the prosecuting attorney to attest the indictment rendered it fatally defective on motion to quash, timely made.
[118 W.Va. 502]
Error to Circuit Court, Kanawha County.
William Burnette was convicted of the unlawful but not malicious wounding of another, and he brings error.
Reversed and rendered.
Salisbury, Hackney & Lopinsky and Lon G. Marks, for plaintiff in error.
Clarence W. Meadows, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for the State.
Maxwell, Judge:
The defendant, William Burnette, convicted in the intermediate court of Kanawha County of the unlawful, but not malicious, wounding of Ralph Wills and sentenced to penitentiary confinement of two years, prosecutes this writ of error to a judgment of the circuit court of said county, affirming the action of the trial court.
In February, 1936, the defendant, acting in his capacity of chief of police of the town of Cedar Grove in said county, shot and seriously wounded in the right arm Ralph Wills, age 20, who at the moment was fleeing from the officer in order to avoid arrest by him under two misdemeanor warrants in the officer's possession. The shooting occurred at the town of Ward which is also in said county. Under a new statute, Code 1931, 8-4-5, a municipal police officer may make an arrest anywhere within his county under a warrant issued by the proper authority of his municipality for an offense committed therein.
It is legal primer law that a police officer or other conservator of the peace charged with the execution of a misdemeanor warrant may not shoot or otherwise imperil the life of the one therein accused in order to effect his arrest or prevent his escape. City of Princeton ex rel. Barber v. Fidelity and Casualty Co., 118 W. Va. 89, 188 S. E. 757; Crosswhite V. Barnes, 139 Va. 471, 124 S. E. 242, 40 A. L. R. 54; 4 Am. Jur., p. 54. But the defendant says that he did not intend to shoot Wills, but shot merely to frighten him into cessation of flight.
[118 W.Va. 503]
Such attempted excuse is no excuse at all. "Shooting with firearms by officers in pursuit of fugitives charged with minor crimes, as a ruse to prevent further flight, is illegal as a reckless use of firearms * * *." State v. Boggs, 87 W. Va. 738, 745, 106 S. E. 47, 50, 18 A. L. R. 1360. On the facts, the case is strongly against the defendant.
But, on the defendant's challenge of the sufficiency of the authentication of the...
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