State v. Hudkins.
| Decision Date | 20 June 1891 |
| Court | West Virginia Supreme Court |
| Parties | State v. Hudkins. |
Where the record shows that the prisoner was tried by a jury of thirteen jurymen, instead of twelve, the verdict should be set aside and a new trial ordered.
When the plea of not guilty and a special plea of autrefois acquit are pleaded at the same time, the law and practice in this State do not imperatively require two trials by separate juries, but the matter is within the sound legal discretion of the judge before whom the trial is conducted; but in all cases, when both issues are tried by a single jury, the verdict must respond to both issues separately.
In all criminal trials in this State the attorney for the commonwealth is entitled to open and conclude before the jury.
ord.
Under a plea of former acquittal parol or extrinsic evidence may be admitted to establish or disprove the identity of the offence or of the person. These are matters of fact, to be established dehors the record; but as to the form or substance of the indictment or exceptions thereto the record alone can be vouched or received as evidence. If the indictment appears to have been sufficient on the former trial, neither the prisoner nor the State can be heard to say that it was otherwise. The record, when produced, proves itself and is conclusive of all matters provable thereby and can not be contradicted, amended nor supplemented by parol testimony of what took place at the trial.
R. S. Blair & Son for plaintiff in error, cited 27 Gratt. 955, 976; 25 W Va. 226, p't 4, Syll.; 27 Graft. 934, 940, 942; 9 Yeag. 357; 10 W. Ya. 794; 4 W. Ya. 755.
Attorney-General Alfred Caldwell for the State cited 2 Leach 708; 1 Leach 448;2 C. & P. 635; 12 Serg. & R. 391; 8 Allen 545; 13 Mass. 455; 105 Mass. 53; 33 Ala. 389; 39 Ala. 229; 26 Ark. 260; 42 Ind. 420; 2 Ya. Cas. 273; 1 Bish. Cr. Proc. § 752; Thomp. & M. Jur. §§ 6, 7; 31 W. Ya, 162.
Lucas, President:
This was an indictment in the Circuit Court of Ritchie county against the defendant for throwing stones and other dangerous missiles into a passenger-car of the Baltimore & Ohio Railroad Company. The indictment was framed under our statute upon the subject, and conformed substantially to the language of the statute. See Code, c. 145. There was a motion to quash, which was overruled. The prisoner then pleaded not guilty; also filed a special plea setting up the fact of a former acquittal. In addition to the general replication, the State filed a special replication, which sets up that the defendant on the former trial was not acquitted by the jury upon the facts and merits, but that he was acquitted upon exceptions to the form and substance of the former indictment. The prisoner demanded a separate trial upon the plea of autrefois acquit, but the court refused to impanel a separate jury, and proceeded to try the prisoner upon both pleas by the regular jury, which is assigned as error. The prisoner further demanded that he was entitled to conclude the argument upon the special plea before the jury, but the court overruled his claim. Upon the trial the prisoner was found guilty by the jury, and the court gave judgment sentencing him to confinement in the penitentiary for two years.
It appears by the record, and it is assigned as error, that thirteen jurors were impanelled, and rendered the verdict of which the prisoner complains. The State asked the court to give an instruction in the language of section 15, c. 152 of the Code, but the court declined to do so, and in lieu thereof gave two instructions as follows: No. 1. If the jury believe from the evidence that Thomas Iludkins was acquitted at the October term, 1888, of this court, of the offence with which he is now charged, upon an exception to the form or substance of the indictment on which he was then tried, and not upon the facts and merits, then such acquittal is no bar to the present prosecution. No. 2. If the jury believe from the evidence that Thomas Hudkins, at the October term, 1888, was acquitted by the jury for the same offence with which he is now charged on the facts and merits, then he is entitled to be acquitted, notwithstanding the indictment on which he was then tried may have been defective." The giving of these two instructions is assigned as error in the third bill of exceptions, but we see no error in them.
After verdict of guilty, the prisoner moved the court to set aside the verdict and grant him a new trial, to which action of the court the prisoner excepted, and the evidence taken on the trial is set out in full.
The first difficulty which arises in this case is easily disposed of. It seems to be conceded by the Attorney General that in a felony case a verdict by thirteen jurors against the prisoner can not be sustained. Section 14 of the Bill of Rights provides: "Trials of crimes and misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men, public, without unreasonable delay, in the county where the alleged offence was committed, unless for good cause shown it shall be removed to some other couuty." Even if the benefit of this provision could be waived by the prisoner in a felony case, such waiver would have to appear clearly and affirmatively by the record. In the case of Younger v. State it was so held by this Court. 2 W. Ya. 569. For this cause, therefore, the judgment of the Circuit Court must be reversed and set aside.
The further assignment of error is that the court below declined to permit a separate jury to be impanelled for the purpose of trying the issue raised upon the plea of a former acquittal. There can be no doubt that the practice in England, as laid down by Mr. Bishop, is to require this issue of a former acquittal to be tried by a separate jury, and, if found against the prisoner, he is permitted to plead over to the indictment, As to the American practice, however, in section 812 of his work on Criminal Procedure, (vol. 1) Mr. Bishop adds: This appears to be the practice in this State and in the state of Virginia; that is to say, there is no imperative rule requiring the issue upon a special plea of a former acquittal to be tried by a separate jury. Our Code in a chapter devoted to the trial of criminal cases, felonies and misdemeanors, does not provide for a separate issue, except in cases where insanity has been suggested. Had it been intended that special pleas in bar should be tried by a separate jury as an imperative rule, the legislature, no doubt, would have so provided. It is a fair inference, we think, that it was the intention of the legislature to leave this matter to the sound legal discretion of the judge who decides the case.
In the case of Vaughan v. Com., 2 Ya. Cas. 273, the plea of not guilty and the plea of autrefois acquit were tried at one and the same time by the same jury, and the verdict found distinctly upon both issues; and this seems not to have been considered error.
In Page's Case, 27 Graft. 954, the issue on the plea of autrefois acquit was tried first, and the general issue of not guilty was tried by a separate jury. It is to be observed, however, that in that case eight of the jurors who had tried the special plea were included in the new panel that tried the general issue; and this was not considered error.
I think it quite clear, however, as insisted upon by Mr. Bishop, that the jury should respond separately to...
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