State v. Blair

• Decision Date: 25 February 1908
• Citation: 60 S.E. 795,63 W.Va. 635
• Parties: STATE v. BLAIR.
• Court: West Virginia Supreme Court

60 S.E. 795

63 W.Va. 635

STATE v. BLAIR.

Supreme Court of Appeals of West Virginia.

February 25, 1908

Submitted February 18, 1908.

Syllabus by the Court.

The terms "one man's saddle" and "one horse" are, in an indictment for larceny, sufficient description of the property alleged to be stolen.

[Ed Note.-For cases in point, see Cent. Dig. vol. 32, Larceny, §§ 64-75.]

A bill of exceptions, to become a part of the record, must, if made in term, be plainly recognized by the record as such, and if made in vacation, within the time allowed by law, must be certified by order duly entered of record, as required by statute.

The mere inadvertence of entering a judgment at law in the book used for the entry of chancery orders and decrees by the same court does not, as between the parties, invalidate or affect such judgment. It is a sufficient memorial for the enforcement of the judgment, or appeal therefrom by writ of error.

Error from Circuit Court, Mingo County.

Harrison Blair was convicted of larceny, and brings error. Affirmed.

F. H Evans, for plaintiff in error.

C. W May, Atty. Gen., for the State.

ROBINSON J.

By this writ of error Harrison Blair complains that he has been convicted and held for petit larceny (1) upon an insufficient indictment; (2) upon a verdict contrary to law and the evidence; (3) by a void judgment.

The indictment charges the larceny of one man's saddle, of the value of $7, and one horse, of the value of $15, of the goods and chattels of another. By motion to quash, which was overruled, exception is taken to the terms used in describing the property as aforesaid. It is contended that they are general and not sufficiently specific. This is not tenable. The indictment sufficiently describes the property. It states with reasonable certainty what is alleged to have been stolen. Bishop, Crim. Proc. vol. 2, § 700, says "Assuming value and ownership to be duly alleged, the following expressions descriptive of the thing are severally sufficient: 'One sheep,' 'a horse,' 'a certain mare,' 'one certain hog,' 'a certain yellow and white pied beef steer,' 'one cow' (under which words the state may prove the animal's color and description), 'one watch,' 'one bolt of domestic, made of cotton,' 'a parcel of oats' (a form not to be commended), 'one hide,' 'one bull tongue,' (being the name of a peculiarly shaped ploughshare), 'one pair of buckskin gloves' (but not proved by evidence that they were of sheepskin), 'a pair of pants,' 'six towels,' 'fifty pounds of flour,' 'one feather bed,' 'a book."' Authorities are there cited for each of the foregoing descriptions.

We are precluded from consideration of the assignment that the verdict is contrary to law and the evidence because the evidence is not properly before us. While the testimony is printed in the record, it is not embraced in, or certified by, a bill of exceptions according to the plainly announced procedure pertaining to such particular. There is, though, that which purports to be a bill of exceptions; but nowhere is it recognized by the record as such. It is therefore not made part of the record, and cannot be considered. If it was in term, the record does not refer to it; and if made in vacation, within the time allowed by law, there is no order certifying same and thereby making it part of the record, as required by statute. Wells v. Smith, 49 W.Va. 78, 38 S.E. 547. Besides all this we observe it to be a faulty skeleton bill of exceptions, so often met with in this court, despite the frequent and emphatic announcement of the proper course to be pursued in such behalf. In it there is a space left, with the words: "Here Insert Evidence)." But such evidence is not inserted. Some is printed in the record separate and apart, and, alone, purports to belong to no bill of exceptions. The bill aforesaid does not even undertake to identify the evidence appearing before us as that mentioned by it. This is all abortive and directly violative of the well-recognized rule expressed in Tracy's Adm'x v. Carver Coal Co., 57 W.Va. 587, 50 S.E. 825.

Is the final judgment, that of fine and imprisonment, entered upon the verdict of the jury, invalid because a note by the clerk shows that it was entered in the chancery order book? Defendant so insists. The novel situation of a judgment of conviction in a criminal proceeding being so entered has, we confess, given us much serious concern. But upon research and reflection such concern appears to arise only by reason of the almost sacred distinction so long maintained in this jurisdiction between procedure at law and in chancery. In this incident, however, a question of distinction in procedure is not involved. It must be conceded that the procedure in this criminal case was at law. Simply the final order was entered out of the accustomed place for orders of that character to be entered. Was this error? May we not well consider it mere inadvertence? Certain it is the judgment was entered, regularly, we may say, in every way, but in the wrong book. Suppose it had not been entered at all; it would be none the less a judgment, pronounced, as it evidently was by the court. "The rendition of a judgment is a judicial act. Its entry upon the record is merely ministerial. A judgment is not what is entered, but what is ordered and considered. The entry may express more or less than was directed by the court, or it may be neglected altogether, yet in neither of these cases is the judgment of the court any less its judgment than though it were actually entered. In the very nature of things the act must be perfect before its history can be so; and the imperfection or neglect of its history fails to modify or obliterate the act. That which the court performs judicially, or orders to be performed, is not to be avoided by the action or want of action of the judges or other officers of the court in their ministerial capacity." Freeman on Judgments, § 38. It is observed that the entry is not the judgment, but only the written history or evidence of it. Such memorial may be necessary to the enforcement of, or appeal from, the judgment, but not to its existence in fact. By the unusual entry in this case we have a memorial of the judgment, quite as sufficient for evidence of such judgment as if it had been entered in the law order book where the other proceedings in the case are recorded. What matters as to the book, if there is such memorial for evidence of the court's pronouncement? We have used the words "wrong book." But in what sense was it the wrong one? Shall we say legally wrong? We find no direct authority of law for separate books in our circuit courts to be kept in law and in chancery. True, the unwritten law, or approved custom, has so been since the organization of these courts. And not for a moment would we do aught to...