State v. Halida.

• Court: Supreme Court of West Virginia
• Writing for the Court: SNYDER.
• Citation: 28 W.Va. 499
• Parties: State v. Halida.
• Decision Date: 22 September 1886

28 W.Va. 499

State
v.
Halida.

Supreme Court of Appeals of West Virginia.

Submitted September 11, 1886.
Decided September 22, 1886.

[28 W.Va. 499]

1. Neither verbal or grammatical inaccuracies nor the misspelling of words in an indictment are fatal to it, where they do not affect the sense, and where from the whole context the words as well as the meaning can be determined with certainty by a person of ordinary intelligence, (p. 501.)

2. Upon an indictment for simple larceny the State may convict

by proving, either that the subject of the larceny was received with a knowledge that it was stolen, or that it was obtained by a false tokeu or false pretence, (p. 503.)

3. Where an indictment consists of two counts, each of which is sufficient as an indictment for simple larceny, the defendant can not require the State to elect and try him on one count only, unless it appears, that the counts charge separate and distinct offences, (p. 502.)

4. In a case tried on such an indictment, after the jury had returned a general verdict of guilty, the court upon being asked by the defendant to have the jury polled as to whether the verdict ap

[28 W.Va. 500]

plied to both counts, stated to the jury: "I suppose you meant to find the prisoner guilty on both counts," and then directed the poll to be taken, Held:

This was not error, which could have prejudiced the defendant in this particular case, and is no grouud for reversing the judgment, (p. 504.)

J. M. Hamilton for plaintiff in error.

Alfred Caldwell, Attorney-General, for the State.

Snyder, Judge:

J. F. Halida was indicted in the circuit court of Calnoun county, on October 17, 1885; he was tried by jury, found guilty, and on February 22, 1886, sentenced by the court to confinement in the penitentiary for two years. There was no demurrer to the indictment, but during the trial the accused took four bills of exceptions, and after the jury returned their verdict he moved the court in arrest of judgment and for a new trial, which motions were overruled and exceptions taken thereto.

The indictment as printed in the transcript before us, contains many grammatical errors, a number of words incorectly spelled, some of which are simply letters joined together and not words, and apart from the context could not be understood. We have, however, had the original indictment brought before us, and lrom an inspection of it, I think, there is no difficulty in determining the words used in it. The chirography is certainly very bad and the spelling of some of the words equally bad, but taking the whole context together, I find no difficulty in ascertaining the words used as well as the full meaning of every sentence. In transcribing and printing the transcript, the misspelling has been greatly emphasized and in some instances exaggerated and perverted by converting badly written words into letters which do not make words: For instance, the word written "seventy-five" is printed "sunty-five," and the word "dignity" which is written without crossing the "t" is printed "dignily." It is not difficult for a person of common or ordinary intelligence to read and understand the words and meaning of this indictment. Legible or plain writing is an accom

[28 W.Va. 501]

plishment not often possessed by even good lawyers; and if courts should make legibility and accurate chirography requisites of valid indictments, prisoners would more often escape tor want of these requisites than by reason of their innocence. The law is well settled that verbal or grammatical inaccuracies, which do not affect the sense, are not fatal. Mere misspelling is not fatal. Whart. Cr. Plead. 2 Pr. § 273; Shay v. People, 22 N. Y. 317; State v. Gilmore, 9 W. Va. 641; State v. Hedge, 6 Ind. 333. If the sense be clear, nice exceptions ought not to be regarded. And even when the sense or the word may be ambiguous, this will not be fatal, if it is sufficiently shown by the context in what sense the phrase or word was intended to be used. King v. Stevens, 5 East 244, 260; 2 Halis. P. C. 193; State v. Edwards, 19 Mo. 674.

The indictment here contains two counts. The first count, leaving out the misspelling and interpreting the language used as the context plainly shows was the intention and as it wrould be clearly understood by any one reading it, is in effect as follows: That F. J. Halida knowingly intending feloniously to defraud one II. W. Hall of his property, on the-

day of August, 1885, in the county aforesaid, feloniously did knowingly, falsely pretend to him the said Hall, that he, the said Halida, was then and there the owner of a certain two year old colt, and that he would like to trade said colt to said Hall for a dun mule then and there being the property of said Hall and of the value of $75.00,...