State v. Jim Brown.
| Decision Date | 09 May 1922 |
| Docket Number | No. 4474.,4474. |
| Citation | 91 W.Va. 187 |
| Parties | State v. Jim Brown. |
| Court | West Virginia Supreme Court |
Submitted May 2, 1922. Decided May 9, 1922.
1. Criminal Law Where Indictment Charged Felony by Reason of Repetition of Misdemeanor After Previous Conviction, a Verdict Finding Defendant Guilty as Charged Held Sufficient. A verdict in a criminal case in which the indictment charged the accused with commission of a felony by reason of his repetition of an offense, after a previous conviction thereof, which alone would be only a misdemeanor, finding him guilty as charged in the indictment, is sufficiently definite and certain. (p. 188).
2. Same Verdict to be Read With Indictment and to Find the Prisoner Guilty of Felony as Charged.
Such a verdict is to be read in connection with the indictment, upon the inquiry as to its legal effect, and, so read, it finds the accused guilty of the felony charged, not a misdemeanor. (p. 189).
3. Same. Statute Requiring Penitentiary Sentence for Repetition of Misdemeanor, for Which Defendant has been Previously Convicted, is Equivalent to Declaring him Guilty of Felony.
A statute requiring a person found guilty, upon a proper indictment, of repetition of a misdemeanor of which he has been previously convicted, to be confined dn the penitentiary, has the same legal effect as if it had in terms declared him to be guilty of a felony and required him to be so confined. (p. 189).
4. Same Conviction for Subsequent Offense Held Not to Warrant Life Sentence to Penitentiary.
A person found guilty upon an indictment charging a felony and also two previous sentences in the United States to confinement in a penitentiary, for offenses made felonious only by reason of repetition of misdemeanors, after previous con victions, cannot be sentenced to confinement in the Penitentiary for life, under the provisions of sec. 24 of ch. 152 of the Code. That section contemplates two previous sentences to such limprisonment, for offenses made felonious on account of their character, not on account of the character of the offender, as disclosed by his conduct. (p. 189).
Error to Circuit Court, McDowell County.
Jim Brown was convicted for the fourth time of the offense of unlawfully carrying a deadly weapon, and sentenced to the penitentiary for life, and he brings error.
Reversed and remanded.
Cecil II. Riley, and Litz & Harm an, for plaintiff in error. E. T. England, Attorney General, and R. A. Blessing, Assistant Attorney General, for the State.
poffenbarger, president:
On this writ of error to a judgment imposing a sentence of life imprisonment, upon the plaintiff in error, under the provisions of sec, 24 of ch. 152 of the Code, apparently on his fourth conviction of the offense of unlawful carrying of deadly weapons, and proof that he had twice before been punished by confinement in the Penitentiary of this State, sufficiency of the verdict is challenged only on account of its form, and the judgment is complained of on the ground of erroneous interpretation of the verdict, as well as departure from the law, correct interpretation of the verdict being assumed. An assignment of error is based upon the overruling of a demurrer to the indictment, but nowhere in the argument is any attempt made to disclose a defect in it and none is revealed by inspection.
The indictment charges an offense, under the statute, sec.
7, ch. 148 of the Code, committed on the......day of February, 1921, a former conviction of felony under the same statute and two former convictions of felony and sentences to imprisonment in the Penitentiary of this state; and the verdict found by the jury reads: '' We the jury find Jim Brown, the defendant guilty as charged in the indictment."
As the indictment charges the offense and a former conviction of another offense of the same kind under the statute, saying the accused had been theretofore convicted, on a named date, of feloniously carrying about his person certain revolvers and pistols and sentenced on such conviction, and the verdict is clearly responsive to it, the charge of uncertainty therein is groundless. State v. Newsom, 13 W. Va. 859; Hobaek's Case, 28 Gratt. 922; State v. Staley, 45 W. Va. 792. For the same reason, it is apparent that the trial court did not misinterpret it. A repetition of the offense, after conviction and punishment, is directly and positively charged, and the statute makes it a felony. As the indictment manifestly charges a felony and the jury found the accused guilty as charged in it, the terms of the verdict preclude the contention that he was found guilty of a misdemeanor. With such a verdict, the indictment must be read upon the inquiry as to its meaning. The indictment charges a felony and the accused was found guilty as charged. This conclusion is sustained by the authorities above referred to.
The contention that the judgment rendered departs from the law of ...
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