State v. Baker

• Decision Date: 18 November 1889
• Citation: 33 W.Va. 319
• Parties: State v. Baker.*(Green, Judge, absent)
• Court: West Virginia Supreme Court

33 W.Va. 319

State

v. Baker.^*(Green, Judge, absent)

Supreme Court of Appeals of West Virginia.

Submitted September 7, 1889.

Decided November 18, 1889.

1. Indictment Quashing Grand Jury.

A plea in abatement to an indictment which avers that the prosecuting attorney, of his own motion, without authority of law, went into the room where the grand-jury were sitting, and, in the presence of the grand-jury, examined certain named witnesses, upon whose testimony the indictment was found, and talked in the presence of the grand-jury about the said testimony of said witnesses, and thus unlawfully conspired against the defendant to have and procure the grand-jury to find the indictment, does not present cause for abating the indictment, and was properly rejected. (p. 321.)

2. Juror.

A juror who had not heard the evidence in a criminal cause on a legal investigation, or from witnesses, hut had read in newspapers a report of the evidence given on a former trial, and stated that from that he had formed a decided opinion as to the guilt or innocence of the accused, which it would require stronger evidence than he had read to remove, and who stated upon his voir dire that he had no prejudice or bias against the prisoner, and that he would regard it a duty, as a juror, under his oath, to discard that opinion, and that he thought he could discard it, and have his mind as a blank, ready to receive the testimony that should be given on the trial, and that, while he would as a citizen entertain that opinion, yet as a juror he would not, but could and would hear and consider the evidence, and render a fair and impartial verdict according to the evidence, uninfluenced by such opinion, and whose statements satisfy the court of his fairness, is a competent juror. (p. 324.)

3. Evidence.

A sheriff having a prisoner in his jail charged with murder requests him to deliver his pantaloons to him, not informing him of the purpose for which he desired them. The prisoner, without any protest or objection, delivers him the pantaloons, taking them off for that purpose. The pantaloons are subjected to investigation by experts, to discover the presence or absence of blood-spots on the pantaloons. The State, upon the trial, against the prisoner's objection, by leave of the court, introduces the pantaloons, together with evidence tending to show that such investigation revealed blood-spots on the pantaloons. There is no error in allowing the pantaloons and such evidence to go before the jury. (p. 330.)

4. Bill of Exceptions Reversal of Judgment.

Whereupon a writ of error to a judgment overruling amotion to set aside a verdict and award a new trial on the ground that the verdict is contrary to the evidence, the evidence, not the facts, is certified in the bill of exceptions, this Court will not reverse the judgment, unless, after rejecting all the conflicting oral evidence of the exceptor, and giving full faith and credit to that of the adverse party, the decision of the trial-court still appears to be wrong. State v. Flanogan, 26 W. Va. 116. (p. 336.)

5. Evidence Reversal of Judgment,

A case in which, upon circumstantial evidence, a verdict of murder in the first degree is found, and this Court refuses to reverse the judgment based upon it.

W. W. Arnett, J. M. Cook, W. I). Moore and J. R. Donehoo for plaintiff error.

Attorney-General Alfred Caldwell, J. A. Hutchinson and W. J. Huff for the State.

Brannon., Judge:

Van B. Baker was indicted in June, 1887, in the Circuit Court of Hancock county, for the murder of Mrs. Brasilia McWha. He demurred to the indictment, and his demurrer was overruled. He tendered a plea in abatement, which was rejected by the court. He then pleaded not guilty. After a trial in Hancock, and a new trial granted, the case was removed to Brooke county. When his trial came on there he objected to certain jurors for incompetency, whom the court accepted as competent. His trial resulted in a verdict of guilty of murder in the first degree, and finding that he be confined in the penitentiary. He moved the court to set aside the verdict and grant him a new trial, on the ground that it was contrary to the evidence, and the admission and rejection of certain evidence, and erroneous instructions. ~No instructions appear in the record, and no assignment is made as to them. The court overruled the motion for a new trial, and on the 27th of December, 1888, rendered judgment that the prisoner be confined in the penitentiary during his life; and to that judgment he obtained a writ of error.

Did the court err in rejecting the plea in abatement? It avers that the prosecuting attorney, of his own. motion, without authority of law, went into the grand-jury room while the grand-jury was in session, and there, in the presence of the grand jury, examined certain witnesses, upon whose testimony the indictment was found, and there talked in the presence of the grand-jury about said testimony of said witnesses, and thus unlawfully conspired against the defendant to have said grand-jury find said indictment. Will the presence of the prosecuting attorney before a grand-jury vitiate an indictment? Our Code of 1868 (chapter 120, § 5) provided that "it shall be the duty of every prosecuting attorney in this State to go before the grand-jury whenever, in his opinion, the public interest will be promoted thereby, or when called upon by the foreman to do so, to aid them with his advice and assistance in the discharge of their official duties. But he shall not be present when any vote is taken upon the finding of an indictment or presentment," This statute has been repealed, and for that reason it is claimed the legislature did not intend prosecuting attorneys to go before grand-juries. In the first place, this section made it the duty of prosecuting attorneys to do so, whereas before it was not imperative; and, secondly, though the legislature may have so intended, it could only express its intent by enactment. This repeal left the subject as it was at common law. How is it at common law?

The judges of England, in 1660, in the proceedings against the regicides of King Charles I., (5 State Tr. 947) resolved that any of the king's counsel might privately manage the evidence before the grand inquest, in ordar to the finding of the bill of indictment. So in the case against Hardy and others (24 State Tr. 199) for treason, in 1794, the solicitor for the crown went before the grand-jury, According to Sir John Hawles, in Colledges' Case, in 1681, the practice had long prevailed. 8 State Tr. 723. 1 Chit. Crim. Law, 260, states that it is not unusual, except in the king's bench, where the clerk of the grand-jury attends, to permit the prosecutor to be present during the sitting of the grand-jury, to conduct the evidence on the part of the crown. So on indictment for treason, where the sovereign is immediately interested, any of the king's counsel may attend for the same purpose, as he can not prosecute in person. 1 Bish. Crim. Proc. § 861, says the practice is not uniform in all the states, but in the greater number the state's attorney is with the grand-jury, when not deliberating on their finding, assisting in examining witnesses, and advising on questions of law. In 9 Amer. & Eng. Cyclop. Law, 16, tit. "Grand Juries," the rule is laid down that "during the taking of the testimony no one besides the witnesses is permitted to be present, except the prosecuting attorney or his assistants. During the deliberations and vote of the grand-jury, no person not a member of the grand-jury may be present. An indictment may be set aside if the rule is violated."

Mr. Justice Nelson, in U. S. v. Reed, 2 Blatchf. 435, said: "It is the uniform practice in the Federal and State Courts for the clerk and assistant of the district attorney to attend the grand-jury, and assist in investigating the accusations presented before it. That has been the practice, to my knowledge, without question, ever since I have had any connection with the administration of criminal justice. * * * We can not at this late day overturn a uniform practice, that has been settled for so long a time. * * * But, if any abuse has been committed by him, or by any other person, it is a proper subject for investigation by the court."

In Justice Field's formal charge as to the powers and duties of grand-juries, in 2 Sawy. 678, he says: "The district attorney has the right to be present at the taking of testimony before you, for the purpose of giving information or advice touching any matter cognizable by you, and may interrogate witnesses before you; but he has no right to be present pending your deliberations on the evidence. When your vote is taken upon the question whether an indictment shall be found, or a presentment made, tio person besides yourselves should be present."

In State v. Whitney, 7 Or. 386, an assistant attorney was before the grand-jury; and this was held not a cause for setting aside the indictment, or reversing the judgment. In Shattuck v. Stcde, 11 Ind. 473, it was held that the prosecuting attorney may attend the grand-jury, examine witnesses, and advise the jury of matters of law. See, also, Thomp. & M. Juries, §§ 630, 632, and Ex parte Crittenden, Hemp. 176, and Whart. Crim. Law, §§ 404, 495.

Davis, in his Criminal Law, says: "The practice in Massachusetts is for the prosecuting officer to open the case, commence the examination of each witness, and meet any question as to the law of the case that may be given him; but during the discussion of the question it is his duty to remain perfectly silent, unless his advice or opinion in a matter of law is requested. The least attempt to influence the grand-jury in the decision upon the effect of the evidence is an unjustifiable interference, and no fair and honorable officer will ever be guilty of it. It is very common, however, for some one of the grand-jury to request the opinion of the public prosecutor as to the propriety of finding the...