State v. 187G
| Decision Date | 11 September 1876 |
| Citation | 9 W.Va. 456 |
| Parties | State v. Granville McDonald.Septembei 11, 187G. |
| Court | West Virginia Supreme Court |
An indictment for feloniously breaking and entering a dwelling house in the night time, with intent to commit larceny, is good under the twelfth section of chapter one hundred and forty-five in the Code, and may be punished under the provision of the thirteenth section of same chapter.
The words "or other house" in said section twelve are sufficient to embrace "dwelling house."
Query? is such an indictment good under the second paragraph of section eleven of said chapter.
An indictment for common law burglary must charge the breaking and entering to have been done "feloniously and burglariously."
It is a principal cause of challenge to a juror that he was one of the grand jury which found the indictment.
A new trial will not. be granted in a criminal case, for matter that is a principal cause of challenge to a juror, which existed before he was eleeted and sworn as such juror; but which was unknown to the prisoner until after the verdict, and which could not have been discovered before the juror was so sworn, by the exercise of ordinary diligence; unless it appears from the whole case, that the prisoner suffered injustice from the fact that such juror served upon the case.
Writ of error to a judgment of the circuit court of Kanawha county rendered at the November term, 1875, of that court, in a case therein then pending, in which the State of West Virginia was plaintiff and Granville McDonald was defendant.
The facts fully appear in the opinion of this Court.
Hon. Joseph Smith, judge of said circuit court presided at the trial below.
W. A. Quarrier for plaintiff in error.
J. II. Ferguson for defendant in error.
The plaintiff in error was indicted in the circuit court of Kanawha county, on the twelfth of May, 1S74. The offence charged in the indictment was, that McDonald, and two others, on the first day of January, 1874, in said county, a certain dwelling house of John T. Reynolds there situate, in the night time, feloniously, did break and enter, with the intent the goods and chattels of said John T. Reynolds, in said dwelling house, feloniously, to steal, take, and carry away, and certain pieces of money did, then, and there, steal, of the sum of $109.85, the property of said John T. Reynolds.
The prisoner demurred to the indictment, but the demurrer was overruled. He then plead not guilty, and a jury was sworn, evidence heard, and a verdict rendered, finding him guilty, and his punishment was fixed at two years imprisonment in the penitentiary. The prisoner moved the court to set aside the verdict, and grant him a new trial, which was overruled. He then moved in arrest of judgment, which was likewise overruled, and the prisoner was then sentenced, according to the finding of the jury.
Upon the trial, after the evidence was heard, the prisoner's counsel contended, before the jury, tint the indictment was for burglary, and was punishable as prescribed by the eleventh section of chapter one hundred and fortyfive of the code of 1868; but the court, at the instance of the prosecuting attorney, instructed the jury, that said indictment was under section twelve of said chapter, and was punishable as prescribed in section thirteen, to which instruction the prisoner excepted, and this forms the substance of the first bill of exceptions.
On the motion for a new trial, the prisoner filed his "affidavit, to the effect, that one Amos Burgess, who was a witness against him on the trial, stated, during the progress of the trial, to certain persons, one of whom was Miss Misha Roy, at his boarding house in Charleston, that "he was on Reynolds' side, until he got his suit of clothes," and that he knew nothing of this until after the trial. With his affidavit, he filed that of the said Misha Roy, in which she swears that said Amos Burgess did say, at the time and place above stated, in her presence, and two strangers, in answer to a question put to him, that " he was on Reynolds' side, until he got his suit of clothes."
The State filed the affidavit of said Reynolds, who was the prosecuting witness, that he had learned that Burgess was a material witness, and had him summoned, but that he had never, by any means, direct or indirect, influenced, induced, controlled, or procured the testimony of said Burgess, further than to have him subpoenaed; that he had never made any promise, express, or implied, to said Burgess, in relation to his testimony in the case, ami, so far as affiant knew, the testimony of Bargess was entirely free from influence of any kind, and was true.
The prisoner filed his further affidavit, to the effect that J. II. Chamberlain, one of his jury, when he was examined on his voir dire, stated, in answer to questions, that he had not made up, or expressed any opinion as to the guilt or innocence of the prisoner; and that he had not been a member of the grand jury by which the indictment was found against the prisoner. When, in fact, said Chamberlain had been a member of said grand jury which found the indictment, and participated in the proceedings of the grand jury, at the time the indictment was found, and, as affiant was informed, and believed, voted for the finding; that he had not the slightest information, or suspicion, that said Chamberlain had been a member of the grand jury, until after the verdict had been rendered against him; that he had exercised all such precaution in the selection of the jury as he could, reasonably, be expected to do.
He also filed the affidavits of all his counsel, to the effect, that they did not know, nor had they any reason to suspect, or believe, that the juror Chamberlain had been a member of the grand jury which found the indictment, until some time after the verdict was rendered.
The court, on these affidavits, overruled the motion for a new trial, and the prisoner excepted, and this forms the second bill of exceptions.
After the evidence and argument of counsel, and before the jury retired from the box, the prisoner moved the court to instruct the jury " That, before the jury could find the prisoner guilty, they must be satisfied, beyond a doubt, that he committed the crime charged in the indictment." This instruction, as asked, was refused, but the court did instruct the jury, that before the jury could find the prisoner guilty, they must be satisfied, beyond a reasonable doubt, that he committed the crime charged in the indictment." To the action of the court, in refusing the instruction, as asked for, the prisoner aga n excepted, and this forms the third bill of exceptions.
In considering the demurrer, and the matter contained in the first bill of exceptions, which present, substantially, the same question, it is necessary to examine the eleventh, twelfth, and thirteenth sections of chapter one hundred and forty-five of the code.
The eleventh section provides: "Any person who shall be guilty of burglary shall be confined in the penitentiary, not less than five, nor more than ten, years. If a person break, and enter, the house of another, in the night time, with intent to commit larceny, he shall be deemed guilty of burglary, though the thing stolen, or intended to be stolen, be of less value than twenty dollars.
It is claimed that this is an indictment founded upon the twelfth section. Therefore, if this section covers the offence charged in the indictment, the demurrer thereto was properly overruled, and the instruction was properly given.
It is conceded by the State here, thai this is not a good indictment under the eleventh section, because it does not charge the breaking and entering to be "feloniously and burglariously" done. This may be correct, but we express no opinion upon that paint, as it is not necessary to be considered in this case. There may be some doubt as to the sufficiency or insufficiency of this indictment under the second paragraph of section eleven.
What is the true meaning of section twelve? It, when analyzed, provides far and covers the following cases: First, if a person in the night time enter without breaking, or in the day time break and enter a dwelling house, or an outhouse adjoining thereto, or occupied therewith, with intent to commit murder, rape or robbery, he shall be confined in the penitentiary not less than five, nor more than ten years.
Second, If any person shall, in the night time, enter, without breaking; or break and enter either in the day time or night time, any office, shop, storehouse, wirehouse, banking house, or other house, wit a intent to commit murder, rape or robbery, he shall be punished by not less than five, nor more than ten, years imprisonment in the penitentiary.
But by section thirteen, if such person has done any of the said acts, with intent to commit larceny, or any felony other than murder, rape or robbery, he shall be punished by not less than two, nor more than tee, years imprisonment in the penitentiary.
The indictment in this case alleges that the prisoner in the night time, did break and enter into the dwelling house, with intent to commit larceny. It is claimed for the prisoner, that the...
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