State Of West Va. v. Howard Dawson et al.

• Decision Date: 12 November 1946
• Docket Number: No. 9837,9837
• Citation: 129 W.Va. 279
• Court: West Virginia Supreme Court
• Parties: State of West Virginia v. Howard Dawson et al.

129 W.Va. 279

State of West Virginia

v.Howard Dawson et al.

No. 9837

Supreme Court of Appeals of West Virginia.

Submitted September 10, 1946.

Decided November 12, 1946.

Criminal Law

Neither the nature nor the weight of the evidence adduced before a grand jury upon which an indictment is returned can be examined under a plea in abatement to the indictment.

Error to Circuit Court, Mineral County.

Howard Dawson and William Garrett Davisson were indicted for murder.The circuit court sustained a plea in abatement to the indictment and entered a judgment of dismissal, and the State brings error.

Reversed.

Ira J. Partloiv, Attorney General, Ralph M. Hiner, Assistant Attorney General, and Eston B. Stephenson, Special Assistant Attorney General, for plaintiff in error.

H. G. Shoresand H. R. Athey, for defendants in error.

Kenna, President:

The Circuit Court of Mineral County sustained a plea in abatement to an indictment charging Howard Dawson and William Garrett Davisson with murder, and this Court, upon petition of the State, granted a writ of error to its judgment of dismissal.The plea in abatement attacks the indictment as found upon a reporter's transcript of the testimony of a witness since dead and the question sought to be tested is whether the transcript, neither the identity nor accuracy of which is questioned, of the testimony of the victim of felonious assault given at a preliminary hearing arising from the assault, where the victim thereof was the only witness against the accused, who cannot be otherwise identified, can be used in the trial of an indictment for murder when the witness-victim, allegedly as a result of the attack, has dropped dead while on the stand at the preliminary hearing after his examination in chief and cross-examination in the presence of the accused.

On the evening of July 30, 1945, at about 8:45 P. M., Floyd N. Hebb met Howard Dawson and William Garrett Davisson, both in the uniform of this country's armed service and both apparently overseas veterans, in Keyser.They seemed to be seeking an agreeable place to spend the evening, either the headquarters of the Veterans of Foreign Wars or of the American Legion.After some time had been spent in a restaurant, Hebb undertook to guide them and while on a lonely side street, with Dawson walking slightly ahead and Davisson by Hebb's side, Davisson struck Hebb "a heavy blow on the temple".Hebb was left unconscious and did not regain consciousness until after he had been discovered and taken to a hospital, when he noticed that his billfold containing between $375.00 and $400.00 was missing.

Floyd N. Hebb was a conductor on the B. &.O.Railroad, whose home was in Cumberland, Maryland, Keyser being one terminus of his route, where he rented a room so that he could sleep between shifts.On the day in question he had been relieved at Keyser at 7:10 in the morning, had selpt until 2:30 P. M., and was preparing to leave that night.

The foregoing statement of occurrences is taken from the transcript of the testimony of Hebb given at the preliminary hearing held on August 8, Dawson having waived and the hearing concerning only Davisson.The testimony goes into great detail, Hebb having undergone a rather lengthy cross-examination by Davisson's attorney, who also represented Dawson.It was after a completed cross-examination by one attorney and the commencement of further cross-examination by another counsel that Hebb dropped dead.

In a brief but exhaustive opinion made a part of the record the Circuit Judge of Mineral County comments upon the fact that the two West Virginia cases of Carrico v. West Virginia Central and Pacific Railway, 39 W. Va. 83, 19 S. E. 571, andState v. Sauls, 97 W. Va. 184, 124 S. E. 670, are the only cases decided by this Court that deal with questions closely akin to that involving the admissibility of the transcript of Hebb's testimony.Neither of those cases deals with the exact question involved here, the Carricocase being a civil action, and the Saulscase presenting the question of whether the former testimony of a witness who could not be found was admissible on behalf of the defendant in a murder case, the opinion of this Court turning upon the lack of diligence used in 129 W. Va. locating the living witness and hence the inadmissibility of the substituted transcript.Neither of the West Virginia caseswe regard as controlling nor do we so regard the Virginia cases of Finn v....