State v. Geo. W. Wisman.

• Decision Date: 20 February 1923
• Docket Number: No. 4585.,4585.
• Citation: 93 W.Va. 183
• Court: West Virginia Supreme Court
• Parties: State v. Geo. W. Wisman.

93 W.Va. 183

State

v.Geo. W. Wisman.

No. 4585.

Supreme Court of Appeals of West Virginia.

Submitted January 24, 1923.

Decided February 20, 1923.

1. Indictment and Information Indictment Charging Felonious Assault Held Sufficient.

An indictment which lays the proper venue, and charges that certain persons therein named, on a stated day and year, in the county aforesaid, did feloniously and unlawfully combine, conspire and confederate together for the purpose of inflicting punishment and bodily injury upon G. A., and that, in pursuance of said combination, conspiracy and confederation, they, naming the persons, on that day and year, in and upon one, W. A., the son of G. A., an assault did make, and him the said W. A. then and there feloniously, unlawfully and maliciously did shoot, cut, etc., with intent the said W. A. then and there to maim, disfigure, disable and kill, against the peace and dignity of the state, is good upon demurrer. (p. 185).

2. Conspiracy If Act of Conspirator in Carrying Out Common Purpose Terminates in Criminal Result, Though Not Intended, All are Liable.

Where there is a combination and conspiracy between two or more persons to commit a crime, if the act of one done in carrying out the common purpose and design terminate in a criminal result, though not the particular result intended, all are liable. (p. 188).

3. Assault and Battery Where Evidence That Accused Acted in Self-defense, Instructions Properly Presenting Defense Should be Given, Although Evidence Preponderates for Prosecution.

If, in a prosecution for a crime resulting from an alleged conspiracy, there is evidence tending to show that no conspiracy was formed, and that the accused was acting in self defense when the alleged crime was committed, it is not error to refuse an instruction which does not properly propound the law of such defense. If, however, the instructions properly propound the law of self defense they should be given, although the evidence may preponderate in favor of the prosecution. (p. 188).

4. Same Instruction That Burden on Accused to Show That Conspiracy Did Not Exist and That the Injury was Not Inflicted Held Erroneous.

Under such indictment it is error to instruct the jury that if they believe the prisoner unlawfully assaulted and inflicted bodily injury upon W. A., and that others jointly indicted with him were present when the assault was made, aiding and abetting, then the jury may presume that such assault was made and the injury inflicted in pursuance of a combination and conspiracy; and that if the jury finds that such facts existed, then the burden is upon the prisoner to show that such conspiracy did not exist and the injury was not inflicted in pursuance thereof; and unless he does so, or it appears from the whole of evidence and circumstances, they should find the prisoner guilty as charged in the indictment. (p. 194).

5. Criminal Law Instructions Must Not Submit Question of Law to Jury.

An instruction must not submit a question of law to the jury.

Error to Circuit Court, Putnam County.

George Wisman was convicted of felonious assault, and he brings error.

Reversed and remanded.

B. J. Pettigrew, Hogg & Hogg, A. A. Lilly and Rummell S Blagg, for plaintiff in error.

E. T. England, Attorney General, R. A. Blessing, Assistant Attorney General, John T. Simms, Chas. B. Aherns, John J. Coniff, and J. B. Handlan, amicus curiae, for the State.

Lively, Judge:

At the October term of court, 1921, defendant was convicted on a charge of felonious assault upon Walter Adkins, and sentenced to imprisonment for five years.

The indictment charges that he and Herb Robinson, James Wisman and Charles Robinson combined, conspired and confederated together, in May, 1921, to inflict punishment and bodily harm upon Grant Adkins, and in pursuance thereof, on the same day, feloniously and maliciously assaulted Walter Adkins, son of Grant Adkins, with intent to maim, disfigure, disable and kill him.

Demurrer and motion to quash was overruled. It is insisted that the indictment is bad because it contains in one count two distinct offenses, one, a misdemeanor, being a conspiracy to inflict bodily harm upon Grant Adkins, a misdemeanor; and the other an assault, in pursuance of the conspiracy, upon Walter Adkins, the son of Grant Adkins, with intent to maim, disfigure, etc. The indictment is drawn under sees. 9 and 10 chap. 148, Code, familiarly known as the "Red Men's Act." The gravamen of the offense here charged is the felonious assault upon Walter Adkins. This is the crime for which the state seeks conviction and the allegation of conspiracy is but incidental thereto and is included therein. Counts charging a conspiracy and also the offense committed in pursuance thereof may be joined where both offenses are similar in nature and in mode of trial and punishment. U. S. v. Lancaster, 44 Fed. 885; Combs v. Commonwealth, (Ky.) 25 S. W. 276; Thomas v. People, 113 111. 531; Commonwealth v. Bodgers, 181 Mass. 184. In U. S. v. Lancaster, supra, it was urged that there was a misjoinder of a count for conspiracy with a count for murder, that the punishment of the two offenses were different and for that reason the indictment should be quashed., The court said: "While independent crimes cannot be joined in the same indictment, where they are of different classes, with different penalties, where a statute provides, as in that before the court, for the definition and punishment of a felonious conspiracy and for a punishment of an additional character for an overt act of a highly criminal nature, when the latter is committed in pursuance of the conspiracy, it being one transaction, the description of the crime as an entirety in the indictment is not only proper but necessary." The lesser crime of conspiracy here charged is included in the greater crime of malicious assault with intent to maim, disfigure, disable and kill. If the state had failed to prove the greater crime, the jury might have found that the conspiracy had been formed, and while no overt act had been committed in pursuance thereof, yet the defendant could have been guilty of the lesser offense and punished as for a misdemeanor. Our statute, sec. 18 of chap. 159, which was intended to cover inclusive offenses, provides: "If a person indicted for a felony, be by the jury acquitted of part and convicted of part of the offense charged, he shall be sentenced for such part as he is so convicted of, if the same be substantially charged in the indictment, whether it be felony or misdemeanor."

As a general rule, two or more offenses cannot be joined in the same count, But if the whole transaction be only parts of one fact of endeavor, all the parts may be stated together as one offense. "No matters, however multifarious, will operate to make a declaration or information double, provided that all taken together constitute but one connected charge or one transaction." Barnes v. State, 20 Conn. 232; Bishop says this observation may be accepted as stating the rule, by adding thereto, "provided, also, that in any view which the law could take of the one transaction it may be regarded as constituting but one offense." See Francisco v. State, 4 Zabriskie (N. J.) 30; 12 C. J. 580, sec. 95, title, "Where object of conspiracy is to commit a felony."

It is well settled that if a number of persons combine and conspire together to commit any unlawful act, and death happens in the prosecution of the design, it is murder in law, although the death happened collaterally, or beside the principal design. Wharton's American Criminal Law, Vol. 2, sec. 998; Spies v. People, 122 111. p. 1. In Ranna v. People, 86 111. 243, the court said: "If defendant and those indicted with him had a common design to do an unlawful act, then, in contemplation of law, whatever act any one of them did in furtherance of the original design, is the act of all, and all are guilty of whatever crime was committed." See to the same effect McLeroy v. State, 120 Ala. 274; Carr v. State, 43 Ark. 101; U. S. v. Sweeney, 95 Fed. 434; U. S. v. Kane, 23 Fed. 751." Where two or more persons combine to do any unlawful act, if the act of one in furtherance of the common plan, terminate in a criminal result, though not the particular result intended, all are liable." Carr v. State, supra. Bishop Grim. Law, sec. 636, and authorities there cited.

As above stated, the offense charged in the indictment is a malicious assault upon Walter Adkins, and it is a well known rule that it is not requisite to charge in an indictment anything more than is necessary to accurately and adequately charge the offense; and when unnecessary averments or allegations are introduced they can be considered as surplusage, and as such disregarded. 1 Wharton's Crim. Proc. sec. 200. The words in the indictment that defendants "combined, conspired and confederated together for the purpose of inflicting punishment and bodily injury upon one Grant Adkins, and that in pursuance of said combination, conspiracy and confederation," could be left out as surplusage; indeed, they are not necessary to complete an indictment for malicious maiming, and without them the offense is charged.

Where two or more persons, acting with a common intent, jointly engage in a common undertaking and jointly commit an unlawful act each is guilty of the offense committed to the same extent as if he were the sole offender. Each is responsible for the acts of the others. 16 C. J. p. 128. In order to show a community of the unlawful purpose, it is not necessary to show an express agreement or an understanding between the parties. A conspiracy or common purpose may be inferred from the circumstances; preconcert may be shown by circumstances as well as by direct evidence. Gibson v. State, 89 Ala. 121; Howard v. Commonwealth, 96 Ky. 19. Leaving out of the indictment the allegation of preconcert or conspiracy, and proceeding under the charge of malicious assault upon Walter Adkins, the presence of ...