State v. Hobbs
| Citation | 17 S.E. 380,37 W.Va. 812 |
| Parties | STATE v. HOBBS. |
| Decision Date | 01 April 1893 |
| Court | Supreme Court of West Virginia |
Submitted January 26, 1893.-
Syllabus by the Court.
1. The first clause of section 1, c. 144, Code, is as follows
2. Where a homicide is proved, the presumption is that it is murder of the second degree, and the burden is on the state of showing, if it can, that it is murder of the first degree; and upon the accused, of showing, if he can, that it was without malice, and is therefore only manslaughter, or that he acted lawfully, and therefore is not guilty.
3. That the alleged crime was committed within the jurisdiction of the court must be shown in the indictment, and proved as charged.
4. But it is not necessary that the proof should be direct that the crime was committed in the county charged. It is enough if the proof be inferential, but sufficient.
5. No statement made by one accused of murder, while a witness testifying at the coroner's inquest, can be used against him on his trial; but anything said by him before such examination as a witness is competent, if relevant.
6. A new trial will not be granted in a criminal case for matter that is a principal cause of challenge to a juror, which existed before he was elected and sworn as such juror, but which was unknown to the prisoner until after the verdict, and which could not have been discovered by the exercise of ordinary diligence, unless it appears from the whole evidence submitted to the court upon such motion (not from the evidence before the jury) that the prisoner suffered injustice from the fact that the juror served in the case.
7. A case in which certain instructions given on behalf of the state are held to be correct, and No. 7, asked on behalf of the prisoner, properly refused.
Error to circuit court, Pleasants county.
E. N. Hobbs was convicted of murder in the second degree, and brings error. Affirmed.
C. T. Caldwell and J. Frank Barrow, for plaintiff in error.
Alfred Caldwell, Atty. Gen., for the State.
In the circuit court of Pleasants county on the 15th day of March, 1892, the grand jury of the county found and returned, indorsed "A true bill," an indictment against the prisoner, E. N. Hobbs, charging that the prisoner on the 31st day of October, 1891, in the said county of Pleasants, murdered one Henry Beaver. The prisoner moved to quash the indictment. It is in the form given by statute as sufficient, and the motion was properly overruled. The prisoner then pleaded not guilty. The issue was tried by the jury, who found Hobbs not guilty of murder in the first degree, but found him guilty of murder in the second degree; and the court fixed the term of confinement in the penitentiary at five years. The prisoner took exceptions to various rulings of the court during the trial, and also to the ruling of the court overruling his motion to set aside the verdict and grant him a new trial, and has brought the case here by writ of error.
One of the grounds of error relied on is that there was no evidence proving, or fairly tending to prove, that the offense was committed in the county of Pleasants. "It seems agreed by all the books that no indictment can be good without expressly showing some place wherein the offense was committed, which must appear to have been within the jurisdiction of the court in which the indictment is taken." 2 Hawk. P. C. c. 25, § 83; 3 Greenl. Ev. § 143. And it is also necessary to prove that it was done in the county where the indictment is found, and the trial had; and "it is error for a circuit court to refuse to set aside the verdict of a jury, and grant a new trial, where a party is convicted, [of larceny,] when no evidence is produced at the trial showing the offense to have been committed within the jurisdiction of the court hearing the case." Hoover's Case, 1 W.Va. 336. That the alleged crime was committed within the jurisdiction of the court was a material fact, in order to convict, and should have been proved as charged, and, when the state fails to make such proof, it is error for the circuit court to refuse to set aside the verdict, and grant a new trial, in a felony case. Mills' Case, 33 W.Va. 455, 456, 10 S.E. 808. Section 12, c. 152, of the Code, provides that "an offense committed on the boundary of two counties, or within one hundred yards thereof, may be alleged to have been committed, and may be prosecuted and punished, in either county." This has been held to be unconstitutional, because, by our present constitution, (article 3, § 14,) the venue in all criminal cases is the "county" where the alleged offense was committed. Lowe's Case, 21 W.Va. 782-790. To this alleged want of proof upon this vital point the state makes two answers:
1. That there is no valid bill of exceptions in the record, and for that reason the judgment of the court below should be affirmed; and they are claimed to be invalid for the following reasons: By section 9 of chapter 131 of the Code, as amended by the act of 1891, "the court may, in vacation, within thirty days after the adjournment of the term, make up and sign any bills of exception, and certify the same to the clerk of the court, who shall enter it upon the order book of such court; and any such exceptions so made in vacation shall be a part of the record, and have the same effect as if made in term time." This is found in a chapter relating to civil trials and proceedings, and does not, and never was intended to, embrace criminal cases, which are provided for by section 1 of chapter 160, which relates solely to criminal proceedings. Section 1, c. 160, reads as follows: "A party in a criminal case or proceeding for contempt, for whom a writ of error lies to a higher court, may except to an opinion of the court and tender a bill of exceptions, which, if the truth of the case be fairly stated therein, the judge shall sign, and it shall be a part of the record." If this should be the true construction of this amendment of section 9 of chapter 131, and that the judge had no power in criminal cases to make up and sign and certify a bill of exceptions, then there would be strong reason for holding such delay as serious error to the prejudice of the prisoner. But I regard the construction which the circuit court acted upon as the correct one, and I think such is the construction which has so far been given it by the bench and bar. At any rate, the need of it was fully as urgent and apparent in protracted criminal trials as in civil trials, and the lawmaker no doubt supposed it applied to both classes of cases. The language is certainly broad enough to cover both. "In the trial of a case at law, in which a writ of error or supersedeas lies to the court of appeals, *** the court shall certify all the evidence, *** and the whole of the evidence so certified shall be considered by the court of appeals." And, when we come down to the clause in question, it says, "and any such exceptions so made in vacation," etc. As to the place in which we find it, the whole Code is expressly made "one act" in the beginning, (see Code 1891, p. 53;) and although the immediate context, treating chapter 131 as such context, relates, for the most part, to civil matters alone, yet it is not confined to such matters. The first section of chapter 131 provides for making out a docket "of cases of the state," and the clerk "shall, under the control of the court, set the cases to certain days." That the two sections cover, to some extent, the same subject-matter, viz. the taking of bills of exceptions, is not of itself sufficient to restrain the provision in question to civil proceedings; for such overlapping of different statutes is not uncommon,--at least, it is not sufficient to make the amendment in question inapplicable to criminal trials, when it appears, as it does in this case, that such trials are within both the reason and the letter of the act in question.
2. The second answer made by the state is that, although there was no direct evidence that the house where the homicide took place was in Pleasants county, yet the jury were authorized to infer that the crime was committed in such county because W. E. Reed, the coroner of Pleasants county, held an inquest over the dead body of Beaver at the house of the prisoner Hobbs, where the homicide took place. Whart. Crim. Ev. (8th Ed.) § 108, and cases; State v. Poindexter, 23 W.Va. 805; Spencer's Case, 2 Leigh, 751; 3 Greenl. Ev. § 112; Com. v. Costley, 118 Mass. 3. Section 1, c. 154, provides, among other things, as follows: etc., "to summon six suitable residents of the county to make inquisition upon view of the body," etc. The prisoner, in his evidence, speaking of what occurred after the homicide, says: ...
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