State v. Cully Vineyard.
Decision Date | 05 December 1919 |
Citation | 85 W.Va. 293 |
Parties | State v. Cully Vineyard. |
Court | West Virginia Supreme Court |
1. Indictment and Information No Conviction of Assault and
Battery Under Indictment for Murder in Statutory Form.
On an indictment for murder in the statutory form, the accused cannot be convicted of assault and battery, because that offense is not necessarily included in the higher offense expressly charged. (p. 294).
2. Homicide Verdict Void for Uncertainty.
A verdict found on such an indictment, acquitting the accused of murder of both degrees and voluntary manslaughter, and then saying the jury find him guilty as charged in the indictment, except as to the charges of murder and voluntary manslaughter, "but do not decide as between the charge of involuntary manslaughter and assault and battery, as therein charged," is void for uncertainty, except as to its findings in favor of the accused. (p. 294).
3. Criminal Law Disapproval of Erroneous Instruction on
Award of New Trial on Second Writ of Error.
An erroneous instruction approved on a writ of error on which a new trial is allowed for other errors and repeated on such new trial, may be disapproved on reversal of the judgment and award of a new trial on a second writ of error, for insufficiency of the verdict. (p. 296).
4. Same Capacity to Commit Crime a Question for the Jury.
Capacity to commit a crime is a question to be determined by the jury from the age, appearance and conduct of the accused, both, at the time of commission of the offense charged and at the time of trial, wherefore the trial court may properly refuse to direct a verdict of acquittal, on the ground of lack of independent, direct and express evidence of such capacity. (p. 296).
5. Same Repitition of Instruction Given.
It is not error to refuse requests for repetition of instructions given, in altered forms. (p. 297).
6. Same Decision as to Propriety of Procedure to Which No
Sufficient Exception Has Been Taken.
On the award of a new trial, founded upon well taken exceptions, an appellate court may, in its discretion, pass upon the propriety of procedure disclosed by the record, to which no sufficient exception has been taken, for the purpose of such new trial. (p. 297).
Error to Circuit Court, Roane County.
Cully Vineyard was convicted of involuntary manslaughter, his motions for new trial and in arrest of judgment were denied, and he brings error.
Reversed and remanded.
Harper & Baker, for plaintiff in error.
E. T. England, Attorney General, and Charles Ritchie, Assistant Attorney General, for the State.
On this second writ of error in the case reported in 81 W. Va. 98, to a judgment rendered as upon a verdict of guilty of involuntary manslaughter, returned by the jury in the new trial awarded, the assignments of error go to the form and substance of the verdict, admission of certain evidence, the giving of an instruction at the instance of the state, refusal of instructions for the prisoner, remarks of counsel in the argument of the case and the motion for a new trial and in arrest of judgment,
The judgment will have to be reversed for lack of a sufficient verdict on which to base it. There is a verdict of acquittal as to murder and voluntary manslaughter, but no verdict of conviction of any offense by name or in legal effect. After having acquitted the accused to the extent above indicated, the verdict proceeds as follows: "We the jury do find the defendant Cully Vineyard guilty, as charged in the indictment with the above exceptions, but do not decide as between the charge of involuntary manslaughter, and assault and battery, therein charged." In this revelation of inability to agree upon the offense of which the jury deemed the accused to be guilty, the verdict seems to be an unprecedented one. In substance and effect it amounts to a report of disagreement or inability to agree upon a finding as to the vital issue submitted to the jury. It necessarily negatives a finding of guilt of involuntary manslaughter, which the charge made in the indictment included and of which the accused could have been found guilty. If there could have been a conviction of assault and battery under the indictment, the terms of the verdict exclude it also. Evidently, some of the jurors were unwilling to concur in a verdict of guilty of manslaughter, because they did not believe the accused had committed that offense; and others unwilling to concur in a verdict of guilty of assault and battery, because they believed him to be guilty of the higher offense. The court seems to have adopted the theory of guilt of the lower offense, because all of the jurors must have believed the accused was guilty of it at least. All of them seemed to be willing to go that far, and part of them still further. The faultless logic of that theory, however, neither constitutes a sufficient basis for a judgment nor amounts to a correct interpretation of the verdict. That, in the absence of a waiver of the right of trial by jury, which the law permits in civil cases and some classes of criminal cases, a verdict finding the accused guilty is essential to a judgment inflicting punishment for an offense, is obvious. It is equally clear that, when a jury is unable to agree upon a verdict, the court cannot supply it, however clearly the judge may be able to see that every member of the jury is convinced of the guilt of the prisoner. Determination of that issue lies within the exclusive province of the jury. There must be a finding by the jury, and the verdict containing it must be recorded, before there can be a judgment.
Except in instances in which a statute requires it, a verdict of guilty as...
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