State v. Dawson, 9837.

CourtSupreme Court of West Virginia
Writing for the CourtKENNA
Citation40 S.E.2d. 306
PartiesSTATE. v. DAWSON et al.
Docket NumberNo. 9837.,9837.
Decision Date12 November 1946

40 S.E.2d. 306

DAWSON et al.

No. 9837.

Supreme Court of Appeals of West Virginia.

Nov. 12, 1946.

[40 S.E.2d. 306]
Syllabus by the Court.

Neither the nature nor the weight of the evidence adduced before a grand jury upon which an indictment is returned can be examined under a plea in abatement to the indictment.

Error to Circuit Court, Mineral County.

Howard Dawson and William Garrett Davisson were indicted for murder. The circuit court sustained a plea in abatement to the indictment and entered a judgment of dismissal, and the state brings error.

Judgment reversed, indictment reinstated and cases remanded.

Ira J. Bartlow, Atty. Gen., Ralph M. Hiner, Asst. Atty. Gen., and Eston B. Stephenson, Spe. Asst. Atty. Gen., for plaintiff in error.

H. G. Shores and H. R. Athey, both of Keyser, for defendants in error.

KENNA, President:

The Circuit Court of Mineral County sustained a plea in abatement to an indictment charging Howard Dawson and William Garrett Davisson with murder, and this Court, upon petition of the State, granted a writ of error to its judgment of dismissal. The plea in abatement attacks the indictment as found upon a reporter's transcript of the testimony of a witness since dead and the question sought to be tested is whether the transcript, neither the identity nor accuracy of which is questioned, of the testimony of the victim of felonious assault given at a preliminary hearing arising from the assault, where the victim thereof was the only witness against the accused, who cannot be otherwise identified, can be used in the trial of an indictment for murder when the witness-victim, allegedly as a result of the attack, has dropped dead while on the stand at the preliminary hearing after his examination in chief and cross-examination in the presence of the accused.

On the evening of July 30, 1945, at about 8:45 P. M., Floyd N. Hebb met Howard Dawson and William Garrett Davisson, both in the uniform of this country's armed service and both apparently overseas veterans, in Keyser. They seemed to be seeking an agreeable place to spend the evening, either the headquarters of the Veterans of Foreign Wars or of the American Legion. After some time had been spent in a restaurant, Hebb undertook to guide them and while on a lonely side street, with Dawson walking slightly ahead and Davisson by Hebb's side, Davisson struck Hebb "a heavy blow on the temple". Hebb was left unconscious and did not regain consciousness until after he had been discovered and taken to a hospital, when he noticed that his billfold containing between $375.00 and $400.00 was missing.

Floyd N. Hebb was a conductor on the B. & O. Railroad, whose home was in Cumberland, Maryland, Keyser being one terminus of his...

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14 cases
  • State v. James Edward S.
    • United States
    • Supreme Court of West Virginia
    • December 12, 1990
    ......Jacobs, 171 W.Va. 300, 298 S.E.2d 836 (1982); 6 State v. Goff, 169 W.Va. 744, 289 S.E.2d 467 (1982); State v. R.H., 166 W.Va. 280, 273 S.E.2d 578 (1980), overruled on other grounds, State ex rel. Cook v. Helms, 170 W.Va. 200, 292 S.E.2d 610 (1981); State v. Dawson, 129 W.Va. 279, 40 S.E.2d 306 (1946); State v. Sauls, 97 W.Va. 184, 124 S.E. 670 (1924). 7 . Page 848 . [184 W.Va. 413] A. . Rule of Necessity .         The initial showing under the Confrontation Clause of the unavailability of a witness was discussed in some detail in Ohio v. ......
  • State v. Sims
    • United States
    • Supreme Court of West Virginia
    • November 14, 1978
    ...... Another question frequently raised is whether the homicide occurred during the commission of the designated felony. State v. Dawson, 129 W.Va. 279, 40 S.E.2d 306 (1946); Haskell v. Commonwealth, 243 S.E.2d 477 (Va.1978); 40 Am.Jur.2d Homicide § 73. See Annot., 58 A.L.R.3d 851. No such factual situation is present in this case. . 10 For a discussion of the common law concept of murder, see State v. Starkey, W.Va., 244 S.E.2d ......
  • State v. Riley
    • United States
    • Supreme Court of West Virginia
    • February 24, 1967
    ...... Page 318 . grand jury. This is not good grounds for quashing an indictment. State v. Woodrow, 58 W.Va. 527, 52 S.E. 545, 2 L.R.A., N.S., 862; State v. Dailey, 72 W.Va. 520, 79 S.E. 668; State v. Dawson, 129 W.Va. 279, 40 S.E.2d 306. .         The second assignment of error is the refusal of the trial court to grant the defendant's motion for a bill of particulars. This assignment of error is also apparently waived, because there is no discussion in connection with this matter in ......
  • State v. Lewis, 20930
    • United States
    • Supreme Court of West Virginia
    • July 6, 1992
    ...... Without any extended discussion of our power to grant the requested relief, we found the trial court did not have jurisdiction to examine the sufficiency of the evidence and issued a writ of prohibition. .         A similar fact pattern was present in State v. Dawson, 129 W.Va. 279, 40 S.E.2d 306 (1946), where the indictment was dismissed because there was insufficient evidence presented to the grand jury. With even less discussion of the procedural question, this Court found that the trial court was "exceeding its legitimate powers and may be prohibited." ......
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