State v. Foley
| Decision Date | 23 March 1948 |
| Docket Number | 9940. |
| Citation | 47 S.E.2d 40,131 W.Va. 326 |
| Parties | STATE v. FOLEY. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. Where a defendant named in an indictment for murder is tried thereon, acquitted of the charge of murder of any degree, but convicted of voluntary manslaughter; which conviction, and the judgment thereon, are later set aside by this Court, and a new trial awarded; the new trial may be conducted on the indictment on which the defendant was first tried; but he may not be convicted of any offense higher than voluntary manslaughter.
2. An attestation of an indictment by the person in charge of a particular prosecution, at the date the indictment therein is returned, who signs such attestation as 'acting prosecuting attorney', is a substantial compliance with the requirements of Code, 62-9-1, relating to the form and attestation of indictments.
3. Where, on an indictment for a felony, the defendant appears thereto, in person, and enters his plea of not guilty, such plea, if not withdrawn, stands until there has been a final determination of the charge stated in the indictment, either by acquittal, or conviction on some charge embraced therein; and where there is a second trial on the same indictment, the original plea stands and need not be again made.
4. The offense of voluntary manslaughter involves an intent to kill; and an instruction or charge to a jury defining such offense, which omits any reference to intent as an element of the offense, is presumed to have been prejudicial to a defendant being tried on an indictment under which he might be convicted of that offense, and constituted reversible error.
5. A written charge given by a trial court to a jury, in a case where a defendant is being tried on an indictment under which he may be convicted of voluntary manslaughter, and which states: '* * * if you believe from the evidence beyond reasonable doubt that the defendant, E. H. Foley, shot and killed the deceased, Joseph Groves, with a dangerous and deadly weapon, a revolver or pistol, fired by his hand, the presumption of law is, without further showing, that the defendant is prima facie guilty of voluntary manslaughter * * *', was prejudicial to the defendant, and constituted reversible error.
6. In a trial of a defendant on an indictment under which he could be convicted of voluntary manslaughter, the giving of a charge to the jury, on the theory of self-defense, which told the jury that: '* * * you are instructed that when there is a quarrel between two or more persons and both or all are in fault, and a combat as a result of such quarrel takes place and death ensues as a result; in order to reduce the offense to killing in self-defense, two things must appear from the evidence and circumstances in the case: first, that before the mortal shot was fired the person firing the shot declined further combat, and retreated as far as he could with safety; second, that he necessarily killed the deceased in order to preserve his own life or to protect himself from great bodily harm', was not error.
7. The evidence in this case was insufficient to require the giving of an instruction or charge, based on the assumption of such concert of action by a group of alleged assailants as would have justified a killing of one of them to prevent the death or great bodily harm to a codefendant, Ranson Kirk in the indictment on which the defendant, E. H. Foley, was being tried.
8. In the trial of a criminal case, the refusal of a trial court to give to the jury when requested to do so, an instruction or charge that the defendant is presumed to be innocent of the charge laid against him in the indictment on which he is being tried, is prejudicial to the defendant, and constitutes reversible error.
T C. Townsend, M. E. Boiarsky and D. L. Salisbury, all of Charleston, and Grover C. Belknap, of Sutton, for plaintiff in error.
Ira J. Partlow, Atty. Gen. and J. Chandler Curd, Asst. Atty. Gen., for defendant in error.
On March 1, 1944, the defendant, E. H. Foley, shot and killed one Joseph Groves, at Widen, in Clay County. At the October term, 1944, of the Circuit Court of said county a joint indictment for murder was returned by the Grand Jury, impaneled at that term, against the said Foley and Ranson Kirk for said homicide. The defendants to said indictment, having demanded a separate trial, the State elected to try Foley first. His trial began on November 28, 1944, and on that day Foley appeared in open court, in his proper person, assisted by counsel, and at that time entered a formal personal plea that he was not guilty in manner and form as charged against him in said indictment. The trial continued until the 9th day of December, 1944, when the jury returned the following verdict: 'We, the jury, find the defendant E. H. Foley not guilty of murder either of the first or second degree; but we do find him guilty of voluntary manslaughter as charged in the indictment.' On December 18, following, a motion to set aside the verdict, aforesaid, was overruled, the judgment of the court entered on said verdict on that day, and the defendant sentenced to confinement in the penitentiary of this State. To the judgment aforesaid, the defendant prosecuted a writ of error in this Court, and on November 13, 1945, we reversed the said judgment, set aside the jury verdict, aforesaid, granted the defendant a new trial, and remanded the case to the trial court for that purpose. State v. Foley, 128 W.Va. 166, 35 S.E.2d 854.
The case, being remanded to the Circuit Court of Clay County, came up for a second trial on October 14, 1946, on the same indictment, and the trial continued until October 18, following, when the jury returned the following verdict: 'We the jury find the defendant E. H. Foley, guilty of voluntary manslaughter as charged in the indictment in this case.'
The order entered by the trial court on October 15, 1946, showing the proceedings had on that day, contained the following:
'This day came the State by its Prosecuting Attorney and the defendant E. H. Foley in person and assisted by counsel, and the defendant demurred to the said indictment and moved the Court to quash the indictment for certain reasons assigned, and recorded by the Court stenographer, which demurrer and motion to quash having been considered by the Court are overruled, to which actions of the Court in overruling said motion and demurrer the defendant excepted; and, nothing further being shown in delay of trial the Court proceeded to empanel a jury to try the cause.'
Then was shown the selection of the jury, and the adjournment of the court to the day following.
At the beginning of the trial, on October 14, 1946, and before the jury had been impaneled, counsel for the defendant made and had entered upon the record the following demurrer and motion to quash:
'The defendant, E. H. Foley, demurs to the indictment pending against him and moves to quash the same. In support of said demurrer and motion to quash, defendant says that the indictment upon which he is about to be tried was returned at the October term, 1944, by the grand jury attending upon that term; the indictment is designated 'Felony Indictment No. 1, State of West Virginia vs. E. H. Foley and Ranson Kirk'; this is a first degree murder indictment; it alleges that E. H. Foley and Ranson Kirk on the 1st day of March, 1944, and before the finding of this indictment in the said County of Clay, feloniously, wilfully, maliciously, deliberately and unlawfully did slay, kill and murder one Joseph Groves, against the peace and dignity of the State; the said E. H. Foley was tried under this indictment at the October term of said court, 1944, and as a result of said trial a jury found the defendant E. H. Foley not guilty of murder in the first degree and not guilty of murder in the second degree, but did find the defendant E. H. Foley guilty of voluntary manslaughter. The defendant says that this indictment now before the court, upon which the defendant is about to be again tried, is not a proper indictment upon which to try him; that the mere reading of this indictment to the jury would tend to prejudice the rights of the defendant because it recites and uses the language usually found in a first degree murder indictment. The defendant further says that the highest offense for which the defendant E. H. Foley can now be convicted under this indictment is voluntary manslaughter and, therefore, the indictment should not allege any offense of a greater degree than voluntary manslaughter; the statute prescribes the form of an indictment for first degree murder and it likewise prescribes the form of indictment for voluntary manslaughter; before the defendant can be properly tried upon a proper indictment, it is his position that the matter should go back to the grand jury and an indictment returned for an offense not greater than voluntary manslaughter.
'The defendant further, in support of said demurrer and motion to quash, says that the indictment upon which the defendant is about to be tried hereinbefore referred to and returned by the grand jury at the October term, 1944, of this court, is signed by S.W. Bryant, Acting Prosecuting Attorney; the defendant suggests there can be no such officer as an Acting Prosecuting Attorney; he is either Prosecuting Attorney or he is not Prosecuting Attorney; and inasmuch as every valid indictment requires the signature of the Prosecuting Attorney appended thereto, defendant believes that this indictment for that reason is bad.'
The foregoing demurrer and motion to quash were each overruled, to which action of the court the defendant excepted at the time.
On November 7, 1946, the defendant appeared and moved ...
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