State Of West Va. v. Ruble
| Decision Date | 02 November 1937 |
| Docket Number | (No. 8660) |
| Citation | 119 W.Va. 356 |
| Parties | State of West Virginia v. Chester Ruble |
| Court | West Virginia Supreme Court |
Errors of grammar or punctuation in an indictment are not fatal, where from the whole thereof the meaning is made clear to a person of ordinary intelligence.
Where, in the trial of a criminal case, a voluntary statement of the defendant touching the charge on which he is being tried, and also other offenses not connected therewith, is offered in evidence, and any part thereof is properly admissible; and the trial court rules that only that part thereof bearing upon the offense on which the trial is being had shall be admitted, and objection thereto is made by the defendant on the ground that the statement cannot be introduced piecemeal, and the entire statement is then admitted, the defendant will not be heard in this court to complain of such action, the same having been invited by him.
Kenna, President, absent.
Error to Circuit Court, Wood County. Chester Ruble was convicted of breaking and entering a storehouse, and he brings error.
Affirmed.
R. E. Bills and K. C. Moore, for plaintiff in error. Clarence W. Meadotvs, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for the State.
Chester Ruble was indicted by a grand jury of Wood County, jointly with Everett Ruble and Elmer Tichnell, and charged with breaking and entering a storehouse in Parkersburg. A demurrer and motion to quash the indictment were overruled. Ruble was separately tried, a verdict of guilty returned against him, motions to set aside the verdict and, in arrest of judgment were overruled, judgment entered on the verdict, and the defendant sentenced to confinement in the penitentiary. To this action of the court below he prosecutes this writ of error.
Numerous grounds of error are assigned which may be disposed of by considering the points raised which we think are determinative of the errors complained of.
The defendant contends that his demurrer and the motion to quash the indictment and his motion in arrest of judgment should have been sustained on account of an alleged fatal defect in the indictment on which he was convicted. This indictment, in so far as it is necessary to quote the same herein, reads as follows:
The indictment continued and charged the defendants with feloniously breaking and entering the storehouse with intent to steal, and the larceny of goods of the value of $18.50. The objection to the indictment is that the period after the word "Wood", and the beginning of a new sentence, "A Certain storehouse belonging * * *" is a mere use of words not connected, and charging no offense, and that the indictment is void. It will be observed that the substitution of a comma for the period following the word "Wood", and the elimination of the capital "A" and the use of a small "a" would have corrected the alleged defect in the indictment. It is well settled in this state that "neither verbal nor grammatical inaccuracies nor the misspelling of words in an indictment are fatal to it, where they do not affect the sense, and where from the whole context, the words as well as the meaning can be determined with certainty by a person of ordinary intelligence." State v. Halida, 28 W. Va. 499; State V. McGahan, 48 W. Va. 438, 37 S. E. 573; State V. Rudy, 98 W. Va. 444, 127 S. E. 190. The plaintiff in error should not have been misled by the irregularity in punctuation and the use of the capital "A" in this indictment, and certain it is that the astute counsel who represented him in the trial of this case could not have been misled thereby.
It appears from the record that Chester Ruble, Everett Ruble and Elmer Tichnell were together on the night of the alleged breaking and entering; that Elmer Tichnell, shortly after his arrest, for this offense, made a statement by which he implicated Chester Ruble as being a party thereto. When Tichnell testified at the trial, he denied that the defendant was present at the time of the alleged breaking and entering, whereupon the state was permitted, over the objection of the defendant, to read the portion of Tichnell's statement made prior to the trial, implicating the defendant, and question Tichnell about it before the jury. We see no grounds for the objection to this procedure. The former statement of Tichnell was permitted to go to the jury, not as evidence that Ruble was, in fact, involved in the alleged commission of the crime, but to show that Tichnell had made a statement prior to the trial, inconsistent with his testimony. This is not an unusual proceeding. At the time of the admission of this statement, the court indicated that the purpose of its admission might be explained to the jury by an instruction. The fact that no such instruction was requested or given should not operate against the admission of this statement, and we see no error in the court's action with respect thereto.
Another ground of error assigned is the admission of a statement purporting to have been made by the defendant shortly after the alleged commission of the offense for which he was indicted. That there was a breaking and entering is not disputed; but the defendant contends that he was not present when this unlawful act was perpetrated, saying that he was in an intoxicated condition, unconscious, and knew nothing of what was occurring at the time the offense was committed. However, within twenty-four hours after the breaking and entering, the defendant made a statement to members of the State Police covering this offense and others, and in which he admitted that he was present at the time of the alleged commission of the offense. This statement is headed: ...
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...is "not fatal, where from the whole thereof the meaning is made clear to a person of ordinary intelligence." Syl. pt. 1, State v. Ruble, 119 W.Va. 356, 193 S.E. 567 (1937). The indictment in this case was sufficient so as not to even require Mr. Palmer to file a bill of particulars.9 In mak......
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