State v. Gilmore
| Decision Date | 31 October 1876 |
| Citation | 9 W.Va. 641 |
| Parties | STATE v. MICHAEL GILMORE. |
| Court | West Virginia Supreme Court |
1. The record of the empanelling of a grand jury states that the jurors, " were sworn a grand jury of inquest upon the body of Mineral county, & c.--HELD:
That the word " upon" is clearly a clerical error, and is to be read " for."
2. The record of the finding of the grand jury is as essential as the record of the verdict of a jury, as it is the only legal proof of the finding of the indictment.
3. The record entry of the finding of the indictment is as follows " The grand jury returned into court having found the following indictments:
| The State (No.1) | ) | Indictment for selling intoxicating liquors to a minor |
| v | ) |
| Michael Gilmore | ) |
A True Bill, P. S. MINSHALL, Foreman.
HELD:
That the record entry of the finding of the indictment was sufficient.
4. The caption of the indictment is: " Fourth Judicial Circuit, Mineral County Court, in the Circuit Court of Mineral County." --HELD:
The insertion of the word " Court" after the words " Mineral County," was a clerical error, and must be treated as mere surplusage, and is cured after verdict.
5. The indictment charges that Michael Gilmore on the tenth day of May, 1873, in said county of Mineral, did unlawfully sell & c.--HELD:
That the indictment is a sufficient finding within the statute.
6. The summons is sufficient as it gives the defendant notice of the character of the offense with which he is charged, and apprises him of the place where, and the time when, he must appear to make his defense.
7. The case of State v. Cain, infra, cited and approved.
Writ of error to a judgment of the circuit court of Mineral county, rendered at the May term, 1874, of said court, in a cause therein pending, in which the State of West Virginia was plaintiff, and Michael Gilmore, defendant.
The facts appear in the opinion of the court.
Hon. J. W. F. Allen, Judge of said circuit court, presided at the trial below.
Robert White for said Gilmore, plaintiff in error.
F. M. Reynolds for the State, defendant in error.
This case is presented to us upon a writ of error to the judgment of the Circuit Court of Mineral county, upon an indictment against the said Gilmore. The indictment is as follows:
" Fourth Judicial Circuit, Mineral County Court, in the Circuit Court of Mineral County.
The Grand Jurors of the State of West Viginia, in and for the county of Mineral, and now attending said court, upon their oaths present, and say that Michael Gilmore, on the tenth day of May, 1873, in said county of Mineral, did unlawfully sell intoxicating liquors to Wm. Hessian, and without the written order from his, said Wm. Hessian's parents, guardian or family physician, the said Wm. Hessian then, and there, being a minor, contrary to the statutes and against the peace and dignity of the State.
F. M. REYNOLDS, Prosecuting Attorney.
This indictment found upon the evidence of Wm. Hessian, sworn in court, and sent before the Grand Jury to testify."
To which indictment the defendant plead " not guilty."
Upon the trial of the issue, the jury found the defendant guilty, and assessed a fine of twenty dollars.
During the trial of the cause, the defendant excepted to the ruling of the court, manifested by two bills of exceptions; the first stating in the following language, that: " the State having introduced testimony tending to prove that the defendant, in May, 1873, sold intoxicating drinks to William Hessian (that he was born on the twenty-sixth day of March, 1854,) without authority from his parents, guardian or physician, and the defendant having introduced testimony to prove that said William Hessian had informed said defendant and others, that he was twenty-one years of age, and said defendant, acting upon said information, so received from him, said Hessian and others, and having no information, whatever, that said Hessian was a minor, sold said intoxicating drinks to said Hessian, as alleged in the indictment; the defendant asked the court to instruct the jury, in the following words and figures, to-wit: If the jury believe from the evidence, that the defendant, Gilmore, made diligent inquiry of said William Hessian, and others, as to his age, and if they further believe, from the evidence, that said Gilmore sold said intoxicating drinks after said diligent inquiry, believing therefrom that said Hessian was twenty-one years old, then they must find defendant not guilty." The court refused to give the instruction.
The second bill of exceptions, in its statement, is the same as the first, except that it uses the expression, " any written authority from his parents," & c., and shows that the court, on motion of the State, instructed the jury, " if they believe from the evidence, that the defendant sold intoxicating drinks to a minor, as charged in the indictment, without a written order as required by the statute, that then they should find the defendant guilty, and they shall assess his fine at not less than $20, nor more than $100; if they believe from the evidence that the party, to whom it is alleged the intoxicating liquors were sold by defendant, was not a minor, then they shall find the defendant not guilty."
The defendant moved the court for a new trial, for the matters set forth in the said two bills of exceptions, and because the verdict was contrary to the law and the evidence, but the motion was overruled, and judgment given upon the verdict.
Under the statute allowing a party to " avail himself of any error appearing on the record, by which he is prejudiced, without excepting thereto," the defendant claims that : " The record of the court shows that ‘ Grand Jurors of the State of West Virginia,’ were impanneled at the November term, 1873, but does not show that they were Grand Jurors of the county of Mineral."
The clerk of the circuit court of Mineral county, having supplied the diminution of the printed record, the completed record sufficiently shows that the foregoing assignment of error is not well taken. The expression, " were sworn a Grand Jury of Inquest upon the body of Mineral county," is clearly a lapsus pennoe, or error of the clerk, correctable by the court; and therefore the word " upon" is to be read " for," which evidently was intended, as it makes the entry conform to the usual form, and also, as by the record entry of the finding of the Grand Jury, the indictment becomes as much a part of the record as if it was spread in extenso on the Order Book." (2 Va., cases 160, 542.) This indictment shows, upon its face, that they were grand jurors of West Virginia, " in and for the county of Mineral."
As the offence sought to be...
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