State v. Davis

Decision Date15 May 1987
Docket NumberNo. 17070,17070
Citation178 W.Va. 87,357 S.E.2d 769
PartiesSTATE of West Virginia v. Kim Wesley DAVIS.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. The purpose served by the indorsement of the grand jury foreman and the attestation by the prosecutor under W.Va.Code, 62-9-1, is to prevent the substitution or the use of an indictment other than the one actually returned by the grand jury.

2. Rule 7(c)(1) of the West Virginia Rules of Criminal Procedure supersedes the provisions of W.Va.Code, 62-9-1, to the extent that the indorsement of the grand jury foreman and attestation of the prosecutor are no longer required to be placed on the reverse side of the indictment. Such indorsement and attestation are sufficient if they appear on the face of the indictment.

3. "In order to constitute the crime of attempt, two requirements must be met: (1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime, which falls short of completing the underlying crime." Syllabus Point 2, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

4. The phrase "wilfully and maliciously" in our arson statutes is common to arson statutes in other states. Courts have rather uniformly held that this phrase means an intentional as distinguished from an accidental burning and without lawful reason, cause, or excuse.

5. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the State's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syllabus Point 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

6. The property distinctions that are relevant to determine the degree of other arson charges are irrelevant under our attempted arson statute, W.Va.Code, 61-3-4 which specifically incorporates "any of the buildings or property mentioned in the foregoing sections." Thus attempted arson is not confined to a dwelling.

7. When a defendant and his counsel have notice of the court's finding of competency to stand trial, under W.Va.Code, 27-6A-1(d), their failure to make a request for a competency hearing within a reasonable time from the receipt of the court's finding will constitute a waiver of the right to such a hearing.

8. "A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice." Syllabus Point 5, State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982).

David Johnson, Asst. Atty. Gen., for appellant.

Edwin C. Runner, Kingwood, for appellee.

MILLER, Justice:

Kim Wesley Davis appeals his conviction for attempted arson by a jury in the Circuit Court of Preston County. Several errors are raised by the defendant. The first is that the the indictment was improperly indorsed by the jury foreman. The defendant also argues that the State failed to prove the defendant intended to willfully and maliciously set the fire. He also claims that the trial court failed to properly charge the jury about the element of criminal intent and that the State failed to prove a jail is a "dwelling" as defined in the arson statute. He claims that the trial court failed to conduct a hearing relative to his mental competency to stand trial and that he was entitled to a copy of the tape recording of his psychiatric examination. Finally, he asserts the trial court erred in allowing the prosecutor to argue a new theory not supported by the evidence during closing rebuttal argument.

On the night of May 18, 1985, approximately one-half hour after lock-up, a fire occurred in the Preston County jail on the second floor in a cell area. The small fire fueled by paper from newspapers and magazines did not burn the jail or the personal property of the inhabitants of the jail. Jailor Robert Chambers saw the fire via a television monitor system. He requested that the communications center get backup assistance. After waiting approximately five to ten minutes for the backup, when the officers entered the cell area, the fire had died out.

A grand jury indicted the defendant on charges of arson and attempted arson. A jury trial was held on August 19 and 20, 1985. At the close of the State's evidence, the trial court directed a judgment of acquittal on the two arson counts, but found that the State had made a prima facie case of attempted arson.

I.

The defendant first contends that the trial court erred in refusing to dismiss the indictment. The defendant's motion to dismiss, made a month before trial, was predicated on the fact that the indorsement of the grand jury foreman appeared on the face of the indictment rather than on the reverse. The defendant contends that this was a fatal defect relying on W.Va.Code, 62-9-1, which provides, in pertinent part:

"Said indictment shall have legibly indorsed on the reverse side thereof the words 'State of West Virginia versus ....... Indictment for a .......... (Felony or Misdemeanor, as the case may be).

.......... Foreman of the Grand Jury.

Attest: ........, Prosecuting Attorney of ........, county, West Virginia.' "

In referring to the provisions of this statute, we have held that "[t]he requirement in each particular is mandatory." Syllabus Point 7, in part, State v. De Board, 119 W.Va. 396, 194 S.E. 349 (1938); Syllabus Point 2, in part, State v. Burnette, 118 W.Va. 501, 190 S.E. 905 (1937). We have never held, however, that the failure to indorse or attest the indictment on the reverse side is a fatal defect when the indorsement and attestation appear on the face of the indictment. In State v. Huffman, 141 W.Va. 55, 71, 87 S.E.2d 541, 551 (1955), we explained that the purpose served by the indorsement of the grand jury foreman and the attestation by the prosecutor under W.Va.Code, 62-9-1, is to prevent the substitution or the use of an indictment other than the one actually returned by the grand jury. 1 See also State v. Burnette, supra.

This purpose can be accomplished equally as well by an indorsement on the face of the indictment as by an indorsement on the reverse side. This is suggested by Rule 7(c)(1) of the West Virginia Rules of Criminal Procedure, W.Va.R.Crim.P., adopted by this Court effective October 1, 1981, which provides in part: "An indictment shall be signed by the foreman of the grand jury and the attorney for the State." This procedural rule does not specify that the indictment be signed in any particular place.

We have traditionally held that under our rule-making authority, Article VIII, Section 3 of the West Virginia Constitution, 2 rules promulgated by this Court have the force and effect of law and will supersede procedural statutes that conflict with them. State ex rel. Watson v. Ferguson, 166 W.Va. 336, 274 S.E.2d 440 (1980); State v. Byrd, 163 W.Va. 248, 256 S.E.2d 323 (1979); State v. Gary, 162 W.Va. 136, 247 S.E.2d 420 (1978); State v. Bolling, 162 W.Va. 103, 246 S.E.2d 631 (1978); Stern Bros., Inc. v. McClure, 160 W.Va. 567, 236 S.E.2d 222 (1977); State ex rel. Partain v. Oakley, 159 W.Va. 805, 227 S.E.2d 314 (1976).

We, therefore, conclude that Rule 7(c)(1), W.Va.R.Crim.P., supersedes the provisions of W.Va.Code, 62-9-1, to the extent that the indorsement of the grand jury foreman and attestation of the prosecutor are no longer required to be placed on the reverse side of the indictment. Such indorsement and attestation are sufficient if they appear on the face of the indictment.

Since the indictment in this case complies with the requirements of Rule 7(c)(1), W.Va.R.Crim.P., we find no reversible error in the trial court's denial of the defendant's motion to dismiss the indictment.

II.

The defendant claims that the State failed to prove any intent or motive for the fire. It must be remembered that the defendant's conviction was for attempted arson. We have stated this general rule with regard to the crime of attempt in Syllabus Point 2 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978):

"In order to constitute the crime of attempt, two requirements must be met: (1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime, which falls short of completing the underlying crime."

Our attempted arson statute, W.Va.Code, 61-3-4, speaks of any person who "wilfully and maliciously attempts ... to burn ... or who commits any act preliminary thereto." 3

In the proof of the substantive crime of arson as distinguished from the crime of attempted arson, we have customarily held that the fire must be of an incendiary origin and that the defendant must be personally connected to the fire. E.g., State v. Yates, 169 W.Va. 453, 288 S.E.2d 522 (1982); State v. Jones, 161 W.Va. 55, 239 S.E.2d 763 (1977). The phrase "wilfully and maliciously" in our arson statutes is common to arson statutes in other states. Courts have rather uniformly held that this phrase means an intentional as distinguished from an accidental burning and without lawful reason, cause, or excuse, as illustrated by State v. Dunn, 199 N.W.2d 104, 107 (Iowa 1972):

"As here employed 'willfully' means purposely, deliberately, intentionally....

"And the word 'maliciously', when used in a legislative enactment pertaining to the crime of arson, denotes that malice which characterizes all acts done with an evil disposition, a wrong and unlawful motive or purpose; that state of mind which actuates conduct injurious to others without lawful reason, cause or excuse." (Citations omitted).

See also State v. Scott, 118 Ariz. 383, 576 P.2d...

To continue reading

Request your trial
23 cases
  • Louk v. Cormier
    • United States
    • Supreme Court of West Virginia
    • July 1, 2005
    ...superseded by Trial Court Rule XVII, which addresses the disqualification and temporary assignment of judges."); State v. Davis, 178 W.Va. 87, 90, 357 S.E.2d 769, 772 (1987) (holding that W. Va. R.Crim. P. 7(c)(1) supersedes the provisions of W. Va.Code § 62-9-1 (1931) to the extent that th......
  • State v. Barrow
    • United States
    • Supreme Court of West Virginia
    • July 7, 1987
    ...his failure to timely request a hearing to challenge the findings and reports may preclude his claiming error. State v. Davis, 178 W.Va. 87, 357 S.E.2d 769 (1987); State v. Schofield, 175 W.Va. 99, 331 S.E.2d 829 (1985). The federal courts under their mental competency statute, 18 U.S.C. § ......
  • State ex rel. Frazier v. Meadows
    • United States
    • Supreme Court of West Virginia
    • December 8, 1994
    ...160 W.Va. 567, 236 S.E.2d 222 (1977). See also Teter v. Old Colony Co., 190 W.Va. 711, 441 S.E.2d 728 (1994); State v. Davis, 178 W.Va. 87, 90, 357 S.E.2d 769, 772 (1987). The important point culled from these various cases is that statutory provisions are superseded only if there is a dire......
  • Pethel v. McBride
    • United States
    • Supreme Court of West Virginia
    • June 8, 2006
    ...by this Court have the force and effect of law and will supersede procedural statutes that conflict with them." State v. Davis, 178 W.Va. 87, 90, 357 S.E.2d 769, 772 (1987), overruled on other grounds, State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994). See W. Va. Const. Art......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT