State v. Beatty

• Decision Date: 22 March 1902
• Citation: 51 W.Va. 232,41 S.E. 434
• Parties: STATE v. BEATTY.
• Court: West Virginia Supreme Court

41 S.E. 434

51 W.Va. 232

STATE

v.BEATTY.

Supreme Court of Appeals of West Virginia.

March 22, 1902.

CRIMINAL LAW—PLEA OF NOT GUILTY—JOINDER OF ISSUE — RECORD — SUFFICIENCY — RECOMMENDATION OF IMPRISONMENT — FAILURE TO INSTRUCT—DEGREES OF HOMICIDE—ELEMENTS—HEAT OF BLOOD—QUESTION FOR JURY—REVIEW.

1. If, in a felony case, the record show that the defendant "pleaded not guilty, " instead of saying "the said defendant says he is not guilty, " etc., the record is sufficient, as to the plea, to sustain a conviction. The plea operates as a legal denial of the charge laid in the indictment, going to all of its allegations, and to put the defendant upon trial, and it is sufficient if the record show that the prisoner has pleaded not guilty.

2. The omission from the record of the similiter or joinder of issue, in such case, does not vitiate the judgment; for the plea of not guilty, without more, legally puts the defendant on trial by jury, and the similiter is a mere form, although the better practice is to insert it.

3. The court is not bound to instruct the jury, in a murder case, that, if they find the defendant guilty of first-degree murder, they may recommend in the verdict that he be confined in the penitentiary, and thus avert the infliction of the death penalty, unless the prisoner requests the giving of such instruction.

4. When, in such case, the record is silent as to the asking, giving, or refusal of such instruction, it is conclusively presumed that, if requested by the prisoner, it was given, and, if it was not requested, that he waived it.

5. The rule that the appellate court will not reverse the judgment of an inferior court unless error appear upon the face of the record, and that all presumptions are in favor of the correctness of the judgment, and that errors in the rulings of the court made during the progress of the trial, and as to other matters not vital and jurisdictional in their nature, but such as may be waived, must be affirmatively shown by the record, applies to procedure in criminal as well as civil cases.

0. Whether murder is of the first degree or second degree depends upon whether the act which produced death was accompanied by specific intent on the part of the slayer to take life. When such intent exists, and the circumstances of the killing are not such as to excuse or justify it, or reduce the offense to manslaughter, the homicide is murder of the first degree. Subject to the foregoing exceptions, the law is that, when the act of the accused which results in death is accompanied by such intent, the act and intent combined include all the elements of first-degree murder. In all cases of killing under circumstances which render the slayer guilty of murder, and the act which produced death was not accompanied by such specific intent, the grade of the crime is murder of the second degree.

7. Where the killing, although intentional, is done in passion, in heat of blood, upon sudden provocation by gross indignity, out of tenderness for the frailty of human nature the law reduces the offense to manslaughter; but, however great the provocation may have been, if there has been sufficient time for passion to subside and for reason to return, the homicide is murder.

8. When time has intervened between the date of provocation and the date of the killing, the question whether the killing was done in the heat of blood is for the jury; and if they find the defendant guilty of murder in the first degree, thereby negativing the existence of passion and heat of blood at the time of the killing, the court cannot disturb the verdict

under the circumstances of this case. (Syllabus by the Court.)

Error to circuit court, Preston county; John Homer Holt Judge.

J. Wesley Beatty was convicted of murder in the first degree, and brings error. Affirmed.

P. J. Crogan, for plaintiff in error.

Neil J. Fortney, Pros. Atty., and R. H. • Freer, Atty. Gen., for the State.

POFFENBARGER, J. J. Wesley Beatty was convicted of murder in the first degree, without recommendation of imprisonment in the circuit court of Preston county on the 20th day of December, 1900. A motion in arrest of judgment and to set aside the verdict and grant a new trial was overruled, and sentence of death was pronounced against the prisoner. He has brought the case here on a writ of error, claiming that the court erred in overruling a motion to quash the indictment, and in overruling the motion to set aside the verdict; that the record does not show any plea entered; that there was no similiter or joinder, and that the record should show affirmatively, as it does not, that the court instructed the jury that they had the discretion, if they found the defendant guilty of murder in the first degree, to recommend, in their verdict, that he should be punished by confinement in the penitentiary, and upon such further finding that the punishment would not be death, but confinement in the penitentiary during the life of the prisoner, as provided in section 19 of chapter 159 of the Code. The indictment is in the form prescribed by the statute, and it has been so often held sufficient by this court that it is useless to take time or space to discuss it, or even refer to the authorities. As to the plea, the record shows the appearance in person of the defendant on the 12th day of December, 1900, and that "thereupon the defendant pleaded not guilty to the indictment" and the case was continued. On the 20th day of December, 1900, the defendant again appeared in person, with an attorney to assist him, and, with the consent of the court, withdrew his plea of not guilty and moved the court to quash the indictment After showing that the motion was overruled, the order says, "Thereupon the defendant pleaded not guilty to the indictment; whereupon a jury was selected and sworn according to law, ", etc. It is needless to say that this is not the form in which a plea of not guilty is usually entered, or that it is usual for the record to show that there was a joinder by the state in the issue tendered by the plea. However, the only question, in respect to the plea, is whether it is sufficient. It is in the past tense, and ordinarily the record shows that the prisoner "says he is not guilty, " etc 1 Chit. Cr. Law, 720, says, speaking of the King's Bench, "In this record, all the acts of the court ought to be stated in the present tense, as prseceptum est, not præceptum fuit; but the acts of the parties themselves may be properly stated as past And, therefore, if it state that sheriff was commanded, instead of is commanded, the error will be fatal." The strictness, as to matters of form, which governed the proceedings in the early history of our jurisprudence, has been much relaxed, and if the use of the past instead of the present tense in entering the plea would have vitiated a conviction in former times, it would hardly do so now. But it is to be noticed that by the law relied upon in this connection it Is not required that the acts of the parties shall be stated in the present tense, but only the acts of the court Pleading not guilty was undoubtedly the act of the defendant, and not of the court, and it is sufficient if the record shows that he did so plead. Arraignment of the prisoner is the act of the court but that preceded the plea (1 Chit. Cr. Law, 720), and in this state it has been dispensed with by statute. Section 2, c. 159, Code. It cannot be said that the plea is the arraignment, or a part of it, and, therefore, the act of the court Arraignment was the calling of the defendant to the bar of the court by his name, and commanding him to hold up his hand, so that he might be completely identified as the person named in the indictment Then the indictment was read to him in full, so that he might know what he was charged with, after which the question was put "How say you (naming the prisoner), are you guilty or not guilty?" All this our statute dispenses with. The prisoner is now entitled to a copy of the indictment his witnesses and counsel, and must be personally present during the trial, but no arraignment is necessary. Formerly, in response to the question above quoted, he was compelled to answer ore tenus either guilty or not guilty. If he answered guilty, that was a confession of the offense, which was followed by punishment as if he had been tried and convicted. If his answer was not guilty, then the clerk made a minute of It on the indictment, and put it In form if it afterwards became necessary to make up the record. Archb. Cr. Prac. 333, 334; Whart. Prec. Ind. 1138. When written out it appeared in the record as follows: "He being immediately asked how he will acquit himself of the premises above laid to his charge, says he is not guilty thereof, and thereof for good and for ill he puts himself upon the country." So it seems that at common law it was only necessary that a minute of the plea be preserved, and that it was not the practice to enter it in full, except when it became necessary to make up the record. It waa a mere minute on the indictment Our practice is different We make the record as to the orders in the case as we go. But as it was never necessary for the record to show more than that the defendant entered his plea of not guilty, is it not sufficient if it simply says he "pleaded not guilty?" Had the prisoner in this ease filed a formal plea of not guilty in writing, It would be sufficient to make it part of? the record, merely to refer to it in the order as his plea of not guilty. Then, if the order further showed that at the time it was filed the defendant was in court in person and so pleaded, as this record shows in respect to this prisoner, it would amount in substance, to a formal plea, and a full compliance with all the essential requirements of the law. The nonessentials, —mere worthless formalities—of the law in its early state have been pruned away and eliminated by the courts and by legislation, until nothing remains except...