State Of West Va. v. Okey DeBd.

• Citation: 119 W.Va. 396
• Decision Date: 16 November 1937
• Docket Number: (No. 8616)
• Court: West Virginia Supreme Court
• Parties: State of West Virginia v. Okey DeBoard

119 W.Va. 396

State of West Virginia

v.Okey DeBoard

(No. 8616)

Supreme Court of Appeals of West Virginia.

Submitted September 22, 1937.

Decided November 16, 1937.

1. Criminal Law

In a criminal case, where credibility of witnesses is involved, a verdict of guilt will not be set aside as contrary to the evidence, if the verdict is warranted by the state's evidence, though contradicted by the defense.

2. Indictment

A general demurrer to an indictment challenges only matters of form and substance appearing on its face. Special demurrers do not obtain in criminal procedure in this jurisdiction.

3. Indictment

A general motion to quash an indictment is of the nature of a general demurrer and carries no graater scope.

4. Criminal Law

A plea in abatement, in criminal procedure, challenges factual matters extrinsic of the indictment but pertinent in the background thereof, and thereby brings in question the legality of the indictment.

5. Criminal Law

Under the West Virginia criminal statute of jeofails (Code, 62-2-11), the motion in arrest of judgment has been rendered less effectual than under the common law.

6. Indictment

Matters of insufficiency on the reverse of an indictment can be reached only by motion to quash, wherein the ground of the attack is specified.

7. Indictment

By Code, 62-9-1, an indictment is required to be signed on the reverse side by the grand jury foreman and attested by the prosecuting attorney. The requirement in each particular is mandatory. The failure of the prosecuting attorney to attest an indictment renders it fatally defective on motion to quash if timely made, the point being specifically assigned. In the absence of such specification, the defect will be deemed waived, and the overruling of the motion is not error.

8. Witnesses

"Subject to the right of a witness to decline to answer incriminating or degrading questions on cross-examination, it is within the sound discretion of the trial court to exclude or permit such cross-examination." State v. Price, 113 W. Va. 326, 167 S. E. 862.

9. Appeal and Error

A verdict of conviction will not ordinarily be set aside on writ of error because of an insufficiency in an instruction of the state, if the point was fully, specifically and correctly covered by a defense instruction.

Kenna, President, absent.

Error to Circuit Court, Kanawha County. Okey De Board was convicted of second degree murder, and he brings error.

Affirmed.

H. D. Rollins, for plaintiff in error. Clarence W. Meadows, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for the State.

Maxwell, Judge:

Okey DeBoard, convicted in the Intermediate Court of Kanawha County of second degree murder of Leo Fizer and sentenced to fifteen years' penitentiary confinement, prosecutes this writ of error to the circuit court's affirmance of the trial court's judgment.

The homicide occurred shortly before midnight, June 26, 1936, in a beer garden and dance hall operated by George Gust in the City of Charleston. The defendant was employed by Gust to keep order in the establishment and was on duty the night of the affray. By reason of his employment, the defendant had been granted by the mayor and chief of police of Charleston a commission as special police officer.

Uncontradicted testimony discloses that just before the killing, the defendant attempted to separate two men who were starting to fight each other; that a large number of persons, men and women, were in the establishment, some of whom were seated in booths and others were dancing in the communicating hall at the rear; that several of the patrons immediately gathered around the defendant and the two fighters; that a melee ensued in which the deceased was fatally shot by the defendant.

From the state's evidence it appears that while de- fendant was in the act of separating the fighters he was knocked down; that he arose from the floor and began swinging indiscriminately his policeman's mace (sometimes referred to by witnesses in the case as a blackjack), and struck several persons who were close by; that in the scuffle, he was knocked to the floor a second time; that either immediately before or directly after his second fall, his mace was wrenched from him; that as defendant started to get up he drew his revolver and, from a standing position, fired in rapid succession five or six shots at those standing about him; that the first shot struck Leo Fizer, and that three other persons were wounded by the shooting, but not fatally; that Fizer had at no time engaged in the difficulty; that when the firing took place, no one was actually threatening to attack the defendant.

It was the defendant's contention that he acted only in self-defense in firing his revolver; that he was dazed by blows; that after he had been knocked a second time to the floor, the deceased and others were making an onslaught upon him and that, without opportunity to rise, he fired from a recumbent position to protect himself from serious bodily injury or loss of life.

Of the conflict of evidence the jury was of necessity the judge. It was within the jury's province to appraise the conflict and the circumstances as contended for by the state. The jury, from all the testimony and the circumstances, was warranted in believing that the defendant did not shoot in self-defense, but that he acted from vindictiveness and with malice. Therefore, the verdict cannot be set aside on the ground of insufficiency of evidence. This disposes of the first point of error on which the defendant relies.

But the defendant urges that the trial court erred in overruling his demurrer to, and motion to quash, the indictment. The indictment is in approved form, and sufficiently charges first degree murder. Such charge is, of course, inclusive of the lesser degrees of unlawful homicide.

Another element enters here. The statute directs that indictments be signed by the prosecuting attorney, and requires that on their reverse they shall be attested by that official. Code, 62-9-1. The indictment at bar fails of statutory compliance in both particulars. On the face of the indictment the prosecuting attorney's name appears in typewriting where his signature should be, and on the back where there should be an attestation, his name appears in print. In State v. Burnette, 118 W. Va. 501, 190 S. E. 905, we held (1) that the statutory provision with respect to the signing of an indictment by the prosecuting attorney is directory merely, and that failure of compliance will not vitate an indictment; (2) that the requirement of attestation of an indictment on its back by the prosecuting attorney is mandatory, and failure of that official so to attest an indictment renders it fatally defective on motion to quash, timely made.

In the Burnette case, it was decided that the motion to quash the indictment should have been sustained. At the time that case was before us, we were inclined to the view that a general motion to quash, without specification, is sufficiently far reaching to embrace a failure of attestation. But, for reasons hereinafter set forth, we have now reached the conclusion, and hold, that a general motion to quash does not reach such defect, but that for such a matter to be considered under a motion to quash, there must be particularization of the point.

For the defense, however, it is urged that such specification was made in the instant case. Reliance is placed on the fact that before entering a plea of not guilty, one of counsel for the defendant thus addressed the court: "If the Court please, we desire to enter a demurrer and motion to quash the indictment generally and move specially to quash upon the grounds that the indictment is not signed by the Prosecuting Attorney of this county but his name is simply written thereon in typewriting, which is not the proper attestation for an indictment." It is to be noted that therein emphasis was placed on, and mention made only of, the failure of the prosecuting attorney to sign the indictment, it being stated that "his name is simply written thereon in typewriting." The typewritten name of the prosecutor is on the face of the indictment and not on the back. So, it must be deemed that counsel was calling the court's attention to that specific matter. In the last part of counsel's statement, the use of the word "attestation" was inapt. Signature and not attestation was the designated point. There was nothing in the statement of counsel to direct the attention of the court to the reverse of the: indictment. So, we conclude that there was no pointing out to the court of the defect on the back of the indictment and reliance thereon.

A general demurrer is a challenge of the sufficiency of the allegations of a pleading. It is an objection that the averments are insufficient in law to support the action or defense. Grant V. Wyatt, 61 W. Va. 133, 56 S. E. 187. "A general demurrer is one which raises an objection without specifying any particular cause or defect, and is sufficient only to reach matters of substance * * *." 6 Ency. Pl. and Pr., p. 306. "The special demurrer points out specifically the objection relied on, and is necessary to reach defects which are merely formal." Idem, p. 307. This is the common law rule. 1 Chitty on Pleading, p. 663. Unless changed by statute, the ur derlying purpose of a general demurrer is the same wherever it is properly employed, whether in civil or criminal procedure. "It (demurrer) is a submission to the court of the claim that, assuming the facts alleged by the other party to be true, they do not in law sustain that for which they are put forth." 2 Bishop's New Criminal Procedure, p. 606, section 776.

In this state, until recent years, in civil cases, only general demurrers were employed and, in fact, they were prescribed. Code 1923, Chapter 125, Section 28. That section was held to abolish special demurrers and to obviate the necessity of specifying grounds of demurrer. Cook V. Dorsey, 38 W. Va. 196, 18...