State v. Cross

• Decision Date: 30 November 1897
• Parties: STATE. v. CROSS.
• Court: West Virginia Supreme Court

29 S.E. 527

44 W.Va. 315

STATE.

v.CROSS.

Supreme Court of Appeals of West Virginia.

Nov. Term, 1897.

Homicide—Plea op Former Acquittal — Sufficiency—Special Judge—Statutes —Clerical Ekkoks.

1. Pleas of former acquittal and former conviction are treated with liberality as to their structure, not requiring the certainty of pleas in abatement, or even of indictments. They must, however, state sufficient facts to show the party entitled to those defenses.

2. Pleas of former conviction or acquittal must state the offense involved in the former trial, its identity with that involved in the second prosecution, and the identity of the person of the accused, with the person before tried, and must vouch the record of the former trial.

3. Where a former conviction or acquittal was on the same indictment still being further prosecuted, no plea of former conviction or acquittal is necessary. Objection to being further tried, or a motion in arrest of judgment, gives the accused the benefit of the former acquittal or conviction. Otherwise where former trial was upon another indictment in the same or other court.

4. Where a party is tried upon an indictment for murder, and found guilty of voluntary manslaughter, and obtains a new trial, though the verdict is silent as to murder, he cannot be tried again for murder.

5. Can one found guilty of murder in the second degree be tried again for murder in the first degree? Not now decided.

6. If one convicted of felony asks and obtains a new trial, the former conviction does not acquit him or prevent his retrial, as he waives the jeopardy of the former trial.

7. In order that a plea of former conviction or acquittal shall avail as a bar to further prosecution, the court must have been one with authority and j urisdiction to try the party.

8. Chapter 49, Acts 1897, prohibits the election of a special judge, where the regular judge is present holding the court, unless the court by the regular judge enters of record an order for such election, reciting the facts specified in the act. Where the record shows the absence of such order, the special judge has no authority or jurisdiction, and his proceedings are void. 9. Mere clerical errors in a statute will be disregarded, or read as corrected, where the true intention of the legislature is manifest from the statute.

10. Where a statute amending a section of a given chapter of the Code refers to the section by the wrong number, and it is manifest from the title and body of the statute that another section was intended to be amended, the error as to the number of the section will be disregarded, and the statute will be applied to amend the proper section.

11. Chapter 49, Acts 1897, amends and re-enacts section 11 of chapter 112 of the Code of 1891, and not section 2 of said chapter 112. Said section 2 is not repealed or affected by said chapter 49.

Dent, J., dissenting.

(Syllabus by the Court.)

Error to circuit court, Ritchie county, T. P. Jacobs, Judge.

Frank Cross, convicted of murder in the second degree, brings error. Affirmed.

Robinson & Fidler, for plaintiff in error.

E. P. Rucker, Atty. Gen., for the State.

BRANNON, J. Cross was found guilty of murder in the second degree, and sentenced to the penitentiary, and sued out this writ of error.

He offered two special pleas, which were rejected on demurrer. One sets up that he had been tried by a jury, and found guilty of voluntary manslaughter, and the court, of its own motion, set the verdict aside, and thus acquitted him, and prayed judgment of discharge. This plea is bad. A plea of former conviction or acquittal, called a plea of autrefois convict and autrefois acquit, is, unlike a plea In abatement or other dilatory plea, a plea in bar, is viewed with liberality, and may be of less definiteness and certainty than an indictment. Technical accuracy is not required, but it must aver all facts essential to the defense. 9 Enc. PI. & Prac. 632, 633; 11 Am. & Eng. Enc. Law, 964; 1 Bish. Cr. Proc. § 808. This plea does not name the person whom Cross was charged with murdering. It does not In any wise aver that the felony for which he had been tried was the same for which he was being then prosecuted. It does not say he was being prosecuted further on the same indictment. It does not say for what act he had been tried, unless we Infer that it was homicide from the use of the word "manslaughter." We may indulge in a weak inference that he had been found guilty of manslaughter upon the same indictment, but it would be mere inference. It names the court In which the former trial occurred, but does not aver that It had lawful jurisdiction of the case. The plea fails in such essentials. 9 Enc. PI. & Prac. 634; 11 Am. & Eng. Enc. Law, 964; 1 Bish. Cr. Proc. § 810; State v. Evans, 33 W. Va. 417, 10 S. E. 792; Justice's Case, 81 Va. 209; 3 Greenl. Ev. § 36. The plea does not vouch the record; that is, after alleging the proceedings on the former trial to show the essentials of such plea, say, "as by the record thereof fully appears, "or equivalent expression. This seems necessary. I would think it would suffice to aver facts shown by the record, and then prove them by it, making the record mere matter of proof; but this does not seem to be so on authority. 9 Enc. PI. & Prac. 635; Wort-ham's Case, 5 Rand. 669; Myers' Case, 1 Va. Cas. 188; 1 Herm. Estop. § 424. The forms give this voucher. 1 Bish. Cr. Proc. S 810; Whart. Prec. Ind. 1150. This plea consists of two parts, —one matter that must be shown by record, the other identity of offense and person of the accused; one triable by the court by record, the other by jury. If the state wishes to deny that there is such record, or that there is a variance, or that it has the legal effect imputed to It, It replies nul tiel record (no such record), and the court at once tries the issue on that plea by the record, and if found against the record the plea fails, and the defendant answers further; and if sustained, and there is no replication denying the identity of the offense and person, there is judgment of discharge, and if there is such replication a jury tries the question of fact. 2 Bart. Law Prac. 1035. The other plea is better, as, though it does not name the person whom he was charged on the former trial to have killed, yet it alleges that he was found guilty of voluntary manslaughter "as charged in the said indictment, " which can mean no other indictment than that on which he was about to again be tried, and It alleges identity of the offense and of the accused. But it does not vouch the record. And, as to both pleas, I will say that they predicate a right to absolute discharge on account of the verdict of manslaughter, and the judgment they pray for is total discharge from further prosecution. No such judgment could be rendered on them, as a verdict of manslaughter would not acquit from further prosecution for that degree of homicide. If the first plea were good, if found true, as the demurrer admitted it to be, it might have called for discharge, since it says that the court, of its own motion, set the verdict aside. It is not necessary to say whether it would have called for final discharge, because it was bad and properly rejected. It may be that, if good, it would not have called for final discharge, but that, as the order setting the verdict aside was only interlocutory, it could be recalled, and judgment entered on the verdict. The second plea does not tell us what became of the verdict, yet prays a discharge. How could it, if the verdict still stood? The state would be entitled to judgment on it. The second plea, and may be the first, ask judgment which could not be given on their own showing, and hence are bad, as a plea must ask a judgment which its facts warrant. If good on their face, we might say that, though they could not obtain judgment of final acquittal, yet they would operate as far as their facts called for; that is, no further prosecution for a degree of homicide higher than voluntary manslaughter. Both pleas were properly rejected on demurrer.

But the record shows upon this same Indictment a former trial and verdict for voluntary manslaughter, set aside by the court, and a second trial, not limited to manslaughter, but for murder, and a conviction of murder in the second degree. No plea of such former conviction of manslaughter was necessary; clearly not. Such plea could be necessary If the verdict had been in another court, or in the same court upon another indictment, because a plea would be necessary to present in this case extraneous matters from another record; but the court will take judicial notice, or, more correctly speaking, will look through the entire record of the case, and must take its steps with eyes open to all in the record which it is bound to see. In Foster v. State, 25 Tex. App. 543, 8 S. W. 664, note 4 in 9 Enc. PI. & Prac. 635, it was held that no plea was in such case necessary, not, as there stated, that, if a plea is used, it need not vouch the record. The defendant could avail himself of the former conviction against further prosecution by objection to being put on trial for a higher offense than manslaughter, before the second trial, or, after verdict on the second trial, he could do so, as he did, by motion in arrest of judgment, as this motion required the court to scan the record to discover any error in It, or anything preventing judgment on the second verdict.

This motion in arrest of judgment brings us to an important matter, which has not, so far as I know, been decided in this state. What is the effect of the first verdict V I answer that, if it is not void, it forbade a trial for murder, and limited the second trial to manslaughter. Upon an indictment for murder, the jury can find the defendant guilty of murder In the first or second degree, or voluntary or Involuntary manslaughter. It not only can, but must, consider and decide of what degree of criminal homicide, if any, he is guilty;...