State v. Halida
| Decision Date | 22 September 1886 |
| Citation | 28 W.Va. 499 |
| Parties | State v. Halida. |
| Court | West Virginia Supreme Court |
Submitted September 11, 1886.
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 token 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 applied 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 ground for reversing the judgment. (p. 504.)
J. M Hamilton for plaintiff in error.
Alfred Caldwell, Attorney-General, for the State.
J. F Halida was indicted in the circuit court of Calhoun 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 incorrectly 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 from 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 accomplishment 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 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.
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 would be clearly understood by any one reading it, is in effect as follows: That F. J. Halida knowingly intending feloniously to defraud one R. 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, by means of which said false pretence the said Halida did then and there feloniously obtain from said Hall said mule in even exchange for said colt with intent to defraud said Hall; whereas, in truth the said colt did not then and there belong to said Halida and he had no authority or privilege to use, trade or sell said colt; and whereas, in truth, the said colt so traded and given in exchange to said Hall for said mule, was a stolen animal then and there and then in the possession of said Halida and not his property, he having no right or interest therein and knowing the same to be stolen: and so the jurors, &c., concluding as an indictment for the larceny of said mule of the value of $75.00.
The second count is in the proper form of an indictment for the simple larceny of a dun mule of the value of $75.00, the sunty-five
and written in the original seventy-five.
Before the defendant pleaded, he moved the court to require the prosecuting attorney to try him on but one count of the indictment and elect upon which he would try him. This motion was overruled and the defendant excepted. The first bill of exceptions is to the refusal of the court to require the prosecuting attorney to make such election after the evidence-in-chief for the State had been heard and before any evidence had been offered on behalf of the defendant. None of the evidence heard on the trial of this case is certified in the record, and it does not appear from the face of the indictment that the offence charged in one count was not the same offence charged in a different form in the other count, we must, therefore, according to the rule announced by this Court in State v. Smith, 24 W.Va. 814, regard the rulings of the circuit court as being correctly made in the exercise of its discretion from the facts before it. If there was any error in said rulings, the defendant, on whom the burden rests to show it, has failed to make it appear by the record and therefore we can not review the matter.
The second bill of exceptions is to the refusal of the court to instruct the jury to disregard the first count in the indictment, on the ground that the same is faulty, because in averring the false pretence the word "designedly" is not used, the right of the defendant to trade the colt is not sufficiently negatived, and the scienter is not sufficiently alleged. The sufficiency of this count will be hereafter considered.
The third bill of exceptions is to the refusal of the court to instruct the jury to disregard the second count in the indictment. The objections made to this count are founded on the misspelling of the words "s...
To continue reading
Request your trial