State v. JarreLl.
| Decision Date | 18 May 1915 |
| Citation | 76 W.Va. 263 |
| Parties | State v. JarreLl. |
| Court | West Virginia Supreme Court |
Joinder of two or more offenses of the same general nature in an indictment is not ground of demurrer. The accused has ample protection from embarrassment by means thereof in his right to require an election by the state, as to which of the alleged offenses it will rely upon for conviction. (p. 265).
The duplicity incident to the joinder, in a single count in an indictment, of two or more misdemeanors of the same general nature and subject to the same punishment, is a formal defect from which sec. 10, ch. 158, Code, serial sec. 5559, relieves. (p. 265).
An indictment charging the accused in a single count, with the unlawful carrying about his person, of certain revolvers, pistols, dirks, bowie knives, slungshots, billies, metallic and other false kunckles and other dangerous and deadly weapons, without a license therefor, as required by law, is sufficient. (p. 265).
Though perhaps not cause for reversal, the admission in rebuttal, of testimony of a prosecuting witness to the effect that he had given to the grand jury the names of other persons, as witnesses for the' state, who had, as witnesses in the trial, disavowed any knowledge; of the guilt of the accused, is erroneous. (p. 266).
Capiases for the accused in a criminal trial and: he returns thereon are not parts of the record. To be available as evidence in the trial, they should be introduced as such, that the opposite party may know they are to be relied upon. (p. 266).
Allowance of the use, in the argument, of such writs and returns, not so introduced, for the purpose of showing incriminating conduct on the part of the accused, accompanied by refusal of permission to rebut or repel the charge of such conduct, is reversible error. (p. 266).
Error to Circuit Court, Boone County.
J. M. Jarrell was convicted of carrying a pistol, and brings error.
Reversed and remanded for new trial.
Chas. L. Estep, for plaintiff in error.
A. A. Lilly, Attorney General, and John B. Morrison and J. E. Brown, Assistant Attorneys General, for the State.
poffenbarger, judge:
Sufficiency of the indictment on which the plaintiff in error was convicted of the carrying of a pistol, in violation of the statute, is denied, on the theory that it charges several offenses in a single count; the averment being that the prisoner unlawfully carried "certain revolvers and other pistols, dirks, bowie knives, slungshots, billies, metalic and other false knuckles and other dangerous and deadly weapons of like kind and character," without a state license therefor as required by law.
Though the practice illustrated here may be a departure from that anciently required and observed, it is sustained by the overwhelmning weight of modern authority. The decisions cited in support of the text in 22 Cyc, p. 308, show it to have been recognized in thirty-two of the American states. The rule or principle enunciated by them is stated as follows in Cyc.: "So where a penal statute mentions several acts disjunctively and prescribes that each shall constitute the same offense and be subject to the same punishment, an indictment may charge any or all of such acts conjunctively as constituting a single offense." In conformity therewith, indictments under statutes regulating the sale of intoxicating liquors, charging sales of all the various kinds of liquors, sales of which without a license were inhibited, have been sustained, although the sale of any one of them and every separate sale of each kind, constituted an offense. Teft v. Com., 8 Leigh 721; State v. Swift, 35 W. Va. 342; State v. Boggess, 36 W. Va. 713.
Intimations of disinclination on the part of this court to extend the practice beyond indictments under such statutes must be taken subject to a test of the principle, if any, on which it rests. Considerations of convenience and expedition in prosecutions for offenses, on the one hand, and undue burdens upon the accused or exposure of his liberty or rights to peril, on the other, are to be noted and observed in the inquiry. If the practice simplifies and expedites prosecutions, without substantial detriment to the accused, it is justifiable, though violative of ancient strictness in pleading; for the purpose of all procedure in criminal cases as in others, ought to be achievement of correct legal results in the shortest and easiest manner. That the adoption of this simple method is not substantially prejudicial to the rights of the accused is the clear concensus of opinion among American jurists.
The inclusion of more than one felony of the same general nature in a single indictment is not ground of demurrer at common law. State v. Blakeney, 96 Md. 711; State v. Mc-Nally, 55 Mel. 559; Strahern v. State, 37 Miss, 422; U. S. v. West, 7 Utah 437; Pointer v. U. S., 151 U. S. 396. Such a joinder is improper, but the remedy for the defect is a motion to require an election by the state, not a demurrer or motion to quash or arrest of judgment. If the offenses are of the same nature, they may be joined, though they differ in degree. Lazier v. Com., 10 Gratt. 708; Arch. Crim. Proced. 310. At common law, several misdemenors may be joined by the use of different counts, if they are of the same nature and subject to similar punishments, and perhaps whether similar in nature or not. Arch. Crim. Proced. 311, note; Young v. Rex, T. R. 98. In view of this rule, the argument ab incon- venienti wholly fails. As the accused may be charged with two or more offenses in one indictment, by the use of several counts, he must prepare to meet all of them, when he is so charged.
Joinder of two or more offenses in the same count has always been condemned, because violative of the technical rule forbidding duplicity. But that rule is not designed for the protection of the accused. Its purpose is to require observance of mere matter of form, for avoidance of prolixity and confusion and in the interest of convenience and good form. Sweeney v. Baker, 13 W. Va. 158, 200; Coyle v. B. & O. R. Co., 11 W. Va. 94; Bouv. L. Diet. It was always more objectionable in pleas than in declarations or indict- ments,...
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