State v. Cottrell

• Decision Date: 08 February 1899
• Citation: State v. Cottrell, 45 W.Va. 837, 32 S.E. 162 (W. Va. 1899)
• Parties: STATE v. COTTRELL.
• Court: West Virginia Supreme Court

32 S.E. 162

45 W.Va. 837

STATE v. COTTRELL.

Supreme Court of Appeals of West Virginia.

February 8, 1899

Submitted February 4, 1899

Syllabus by the Court.

1. In an indictment, a count evidently intended for burglary, which fails to charge the offense as burglariously committed, is bad, and should be quashed. State v. Meadows, 22 W.Va. 766.

2. A person found guilty by the verdict of a jury, under a bad count for burglary, cannot be sentenced for housebreaking although the indictment contain a good count, charging the latter offense.

3. It is improper for a judge to try indictments signed by him as prosecuting attorney.

Error to circuit court, Ritchie county; R. H. Freer, Judge.

Richard Cottrell was convicted of burglary, and brings error. Reversed.

P Lipscomb, for plaintiff in error.

DENT J.

Richard Cottrell was tried for a felony in the circuit court of Ritchie county, found guilty, and sentenced to two years in the penitentiary. On a writ of error to this court he relies on the following assignments: (1) That the count in the indictment on which he was found guilty should be quashed, because it fails to use the word "burglariously"; (2) that the judge who tried the case was also the prosecuting attorney who signed the indictment.

The indictment is as follows: "The State of West Virginia Ritchie County, to wit: In the Circuit Court of said County. The grand jurors of the state of West Virginia, in and for the body of the county of Ritchie, and now attending the said court, upon their oaths present that Richard Cottrell, on the ___ day of July, 1896, in said county of Ritchie, the dwelling house of one H. J. Amos there situate, in the nighttime of that day, feloniously did enter, without breaking the same, with intent the goods and chattels of the said H. J. Amos, in the said dwelling house then and there being, feloniously did steal, take, and carry away, and three pillows of the value of one dollar each, and three pillow slips of the value of twenty-five cents each, one bucket of the value of twenty-five cents, and one lamp of the value of one dollar, three table forks of the value of fifty cents each, and two chairs of the value of one dollar each, and one pepper box of the value of twenty-five cents, and one coffee mill of the value of one dollar, and three bed quilts of the value of two dollars each, of the goods and chattels of the said H.J. Amos, in the said dwelling house then and there being found, feloniously did steal, take, and carry away against the peace and dignity of the state. And the jurors aforesaid, on their oaths...