State Of West Va. v. Smith
| Decision Date | 13 May 1947 |
| Docket Number | (No. 9899) |
| Citation | 130 W.Va. 183 |
| Parties | State of West Virginia v. Kessler Smith, et al. |
| Court | West Virginia Supreme Court |
1. Indictment
In a felony indictment it is necessary to charge that the acts alleged to have been done by the accused were done "feloniously".
2. Error
Where three accused are being tried under a joint indictment an instruction which directs the jury to return a verdict against all three defendants in the event it believes from the evidence beyond all reasonable doubt that one of them has participated with either of the others in the commission of the offense charged, is prejudicial error.
Error to Circuit Court, Nicholas County.
Kessler Smith, Wilbur Stull and Paul Redman were convicted of assault and battery, and they bring error.
Reversed.
G. G. Duff and Wysong & Wysong, for plaintiffs in error.
Ira J. Partlow, Attorney General, and J. Chandler Curd, Assistant Attorney General, for defendant in error.
Wilbur Stull, Kessler Smith and Paul Redman were indicted, convicted and sentenced in the Circuit Court of Nicholas County under an indictment for unlawful wounding as defined in Code, 61-2-9, the verdict being for assault and battery, a lesser and integral part of the offense charged, permissible under Code, 62-3-14. On this writ of error the specific assignments go to the sufficiency of the State's testimony, to the giving of instructions tendered on behalf of the State, to the refusing of instructions tendered on behalf of the accused and to the exclusion of testimony of justice of the peace M. J. Maloney tendered on behalf of the defendant.
The testimony of the State is that about one P. M. on February 14, 1946, the three defendants were in the automobile of Wilbur Stull parked near the intersection of a dirt road with the highway between Hominy Falls and Summersville when a mail truck driven by Alban Helms and carrying C. C. Kyle and Mrs. Florence Ashley as passengers on its way from Summersville to Hominy Falls, drove up and stopped behind their car. C. C. Kyle got out of the mail truck and started to its back to get grocer- ies to carry to his home that was on the intersecting dirt road some little distance from the main highway. Paul Redman saw him, got out of the Stull car and called to him that he wanted to talk with him. Kyle told him to wait until he got his groceries. This he did as Redman was demanding an explanation of threats he had heard Kyle had made concerning "old man Smith". Kyle testified that he told Redman he didn't know of having made such threats, at the same time walking down the dirt road toward his home with Redman behind him. In the meantime Kessler Smith had gotten out of the automobile and had walked by the side of Kyle, crowding him to the side of the road and by pushing and jostling preventing him from looking behind to see who was following. Kyle says that Wilbur Stull ran up behind him, struck him, and jumped on his back carrying him forward on his face, and, lighting astride his shoulders and neck, struck him violently with his fists until Smith told him "that is enough" and to get up, which Stull did. When Kyle could rise he continued down the road to his home.
The testimony of the defense is that Redman, after demanding an explanation of the threats that he had heard Kyle had made, went with Kyle a short distance down the dirt road and struck him after Kyle, by gesture, had threatened to hit Redman with a jar of peanut butter Kyle was carrying. Redman admits that he struck Kyle two or three times and that Smith got out of the car and told him to stop. He says that Stull was in the car during the entire occurrence. Both Smith and Stull corroborate Redman in all material details. The defendants say that they were at the road intersection waiting for a person by the name of Virgil Carpenter whom they intended to take to Marfrance in Greenbrier County in the Stull automobile, evidently to overcome the possible inference of prearrangement of the assault upon Kyle. The State was allowed to put Virgil Carpenter upon the stand, who denied any arrangement with the defendants and swore that on that afternoon he was actually in Marfrance. The mail truck had driven away before the assault occurred so that neither Alban Helms nor Mrs. Ashley could throw light upon the actual occurrence.
We are of the opinion that the State's testimony is sufficient to sustain a verdict against all three of the defendants on the theory that there was an assault and battery committed upon Kyle in which they all to a degree participated.
Immediately following the assault the defendants drove to Summersville, appeared before justice of the peace Maloney and, upon the complaint of Smith, Redman confessed to assault and battery and was fined five dollars and costs, which he promptly paid. We think it was not error to exclude the testimony of this occurrence for the purpose of sustaining the plea of the defendant of autrefois convict since the proceedings before the squire were brought by one joint defendant against another joint defendant and were not participated in by either a peace officer or the victim of the assault. Collusive proceedings of this nature are never regarded as a valid defense. Haldeman v. Davis, 28 W. Va. 324, 327. See also: State V. Scaggs, 99 W. Va. 689, 691, 129 S. E. 705; Commonwealth v. Jackson, 2 Va. Cas. 501; 15 Am. Jur. 52.
The assignments of error based upon the State's instructions given over the defendants' objections under the rule announced in State v. Belcher, 121 W. Va. 170, 2 S. E. 2d 257, necessitates deciding first whether this case is to be regarded as a misdemeanor prosecution or as a prosecution for a felony. Under the express provisions of Code, 61-2-9, no misdemeanor is included. It provides that both malicious and unlawful assaults are felonies. Either must be done with the intent "to maim,...
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