State of West Virginia v. Vest.

• Decision Date: 30 June 1883
• Citation: 21 W.Va. 796
• Parties: State of West Virginia v. Vest.
• Court: West Virginia Supreme Court

21 W.Va. 796

State of West Virginia

v.Vest.

Supreme Court of Appeals of West Virginia.

Submitted June 19, 1883

Decided June 30, 1883.

1. A record imports such absolute verity, that no person against whom it is pronounced will be permitted to aver or prove anything against it. (p. 800.)

2. The record to which such absolute verity is imputed consists not only of what is written on the record-book and authenticated by the signature of the judge, but it also consists of all indictments, pleadings and papers referred toby the record-book and thereby made a part of the record, (p. 800.)

3. But if a record is interlined or erased in a material matter and it is alleged, that this was done after the record was made, by some unauthorized person, such alteration constitutes no part of the record, and an enquiry may be made into the genuineness of such altered record, and it may be proven by parol, thatsuch alteration was thus made by one not authorized to make1 it. This is not controverting the absolute verity of the record, but simply enquiring as to what really constitutes the record. If this were not allowed, the absolute verity attributed to a record could be used to give sanction to a forgery or to a fraudulent erasure ot the record, (p. 801.)

4. When a record is thus to be restored to its original and true form, the proper mode of doing it is by a motion, which can be made even after the case, in which the record is made, has been removed to the Appellate Court; but such motion can only be made in the court below, in which the record was made up. (p. 801.)

5'. Though a record appears to have beet] interlined or erased, its verity can not be assailed incidentally or in any other court, but only in the court where the record is made, and then only when it is directly called in question by a motion to correct it. (p. 802.)

6. When a record has been thus restored to its original and true form, the record will in all other proceedings betaken in its corrected and not in its falsified form. (p. 802.)

7. If an indictment for felony found by a grand jury has omitted to charge, that the criminal act done was done feloniously, and after the grand jury is discharged the word "feloniously" is in- serted in the indictment so as to render it in form a good indictment, when before II was fatally defective, and the defendant pleads not guilty, and the jury find a verdict against him, he may then move the court to have the indictment restored to its original and true form, and when so restored judgment may be arrested tor the fatal defect in the indictment, (p. 808.)

8. If in such an alleged case the court below refuses to hear the evidence ottered to prove such unauthorized interlineation of the word "feloniously," the Appellate Court will reverse the judgment entered upon such verdict, and will remand the case with instructions to the court below, on such motion, to hear the parol evidence and restore the indictment, if it has been changed, to its original and true form, and then to determine the motion in arrest of judgment, treating, in deciding such motion, the indictment, on which the defendant had been tried as if at the trial it had been in its true and original form. (p. 80(5.)

Writ of error to a judgment ot the circuit court of the county of Randolph, rendered on the 30th day of September, 1882, on an action against Charles Vest for felony in said court then pending, allowed upon the petition of said Vest.

Hon. R. F. Fleming, judge of the sixth judicial circuit, rendered the judgment complained of.

Greex, JtJDGE, furnishes the following statement of the case:

On the 16th day of September, 1882, the grand jury of Randolph county presented an indictment against Charles Vest, which was endorsed "a true bill," which endorsement was signed by the foreman of the grand jury. The record states, that it was an indictment against Charles Vest for a felony. The indictment is now apparently in the following words:

"State ok West Virginia, Randolph County, to-wit:

"In the Circuit Court thereof,

"September Term, 1882.

"The grand jurors of the State of West Virginia in and for the body of the county of Randolph and now attending the circuit court of said county, upon their oaths present that Charles Vest, of said county, on the day of July, 1882, in the county aforesaid, one silver watch and chain of the value of twenty-six dollars, of the goods and chattels of one A. P. T. Wilson, then and there being found, feloniously did steal, take and carry away against the peace and dignity of the State of West Virginia.

"Found upon the evidence ot John Mann, A. P T. Wilson, Martin Pfan, J. J. Buckey, G. W. Buckey, J. D. Wilson and A. W. Suiter, witnesses sworn in open court and sent before the grand jury to testify at the instance oi the prosecuting attorney. "Cyrus H. Scott,

"Prosecuting A ttorney"

It was after the verdict and before the judgment claimed by Charles Vest, that the word feloniously, interlined in the indictment, was interlined after the grand jury was discharged, but before the plea ot not guilty was put in. The defendant being unable to procure counsel, and desiring the assistance of counsel, the court assigned him counsel. He pleaded not guilty on the trial, and on September 30, 1882, the jury found this verdict: "We, the jury, find the prisoner. Charles Vest, guilty of grand larceny in manner and form as char fired in the indictment."

The defendant by his counsel moved the court to arrest the judgment against him upon this verdict, because the indictment and the record thereof were not sufficient. He alleged, that the indictment had been changed by inserting the word "feloniously" therein after the same had been returned by the grand jury and after said grand jury had been discharged, and before the prisoner's arrangmont on said indictment and Ins plea of not guilty thereto; and the prisoner in support of his motion ofiered to introduce witnesses to prove, that the said word " feloniously M bad been so interlined and written into the said indictment, after the finding thereof and the discharge of the grand jury; that the court upon the inspection ot the record and the said indictment, to which the defendant had pleaded " not guilty," considered the same to be sufficient and refused to arrest the judgment, and also refused to allow the prisoner to prove, that the said indictment had been so altered and changed by interlining and writing therein the word "feloniously" as aforesaid. To which action of the court the prisoner excepted, and his bill of exceptions setting forth these matters was signed, sealed and enrolled as a part of the record.

The court rendered a judgment, that said Charles Vest be imprisoned in the penitentiary of this State for the term of three years, the period fixed by the court. And it was ordered, that the sheriff of said county do as soon as possible after the adjournment of the court remove and safely convey said Charles Vest from the jail of the county to the said penitentiary therein to be left imprisoned and treated in the manner directed by law. And thereupon he wras remanded to jail, and at his instance the execution of said judgment was suspended for thirty days in order to allow-him to present a petition to this Court for a writ of error and supersedeas to said judgment. Such petition was presented and allowed October 21, 1882. And it being now represented to this Court by an amermts curice that the defendant was without counsel in this Court, he being unable to employ counsel, and it being asked, that his case might be submitted to this Court for its decision, though no arguments had been made or submitted on the part of the State or by the defendant, as is required by the rules of this Court, and it appearing to this Court, that the prisoner is in jail and unable to employ counsel, and that he desired his case to be acted on now by this Court, and as it is now ready for hearing, except that no arguments of counsel have been tiled and docketed in this Court for hearing since last January, this Court assents, under the circumstances, to take up and decide the case, though its rules have not been complied with.

No appearance of counsel for either party.

Green, Judge, announced the opinion of the Court:

There are so far as appears no errors in the proceedings in this case unless, the court below erred in refusing on the motion of the prisoner to allow him to offer evidence to prove, that the word "feloniously" had been interlined in said indictment after the same had been returned by the grand jury and after the grand jury had been discharged, but prior to the prisoner's pleading "not guilty." The record on its face shows, that the word "feloniously" had been inserted by interlineation in the indictment; but of course it does not appear, whether this was done before or after the grand jury acted upon this indictment; and the only question really in this case is, whether the circuit court erred in refusing to permit the prisoner to prove by witnesses, that this interlineation was made after the grand jury had acted upon the indictment and had been discharged and in refusing to arrest the judgment. It seems to me, that it would be a reproach to our jurisprudence if a material allegation could be inserted in an indictment after it had been found by a grand jury to the prejudice of a party, and that such alteration ot an indictment could because it is a part ot record in no manner be considered, as this w7ould amount to depriving the accused of the protection given him by the Constitution, that the indictment must be found by a grand jury.

It is certainly a rule invariably recognized by the courts, that a record imports such absolute verity, that no person against whom it is pronounced will be permitted to aver or prove anything against it. This rule is well established, and we now here refer to but a few of the many cases, in which this doctrine has been held. See Rex v. Carlile, 2 Barns....