State v. Kellison.*

Decision Date01 March 1904
Citation47 S.E. 166,56 W.Va. 690
CourtWest Virginia Supreme Court
PartiesSTATE . v. KELLISON.*

CRIMINAL LAW—DELAY IN TRIAL — DISCHARGE OP ACCUSED—PRIVILEGE OF COUNSEL-RECORD—IMPANELING JURY—INSTRUCTIONS.

1. The fact that the record in a felony case shows that mire than three terms of the court have passed without a trial, after the finding of the indictments, affords no ground for the discharge of the accused, under section 25 of chapter 159 of the Code of 1899, from prosecution for the offense with which he is charged. It must further appear that he has been held for trial, as well as charged with the crime, for such period, without a trial.

2. Failure of the record in a felony case to show that the accused had the assistance of counsel therein is not ground for setting aside the verdict and granting a new trial, if it does not affirmatively appear that the accused was denied the privilege of counsel guarantied to him by section 14 of article 3 of the Constitution.

3. It is not necessary to a legal conviction on a charge of felony that the order showing the impaneling of the jury recite that the jurors so impaneled were good and lawful men.

4. If, in such case, the order recite that the jury were "sworn the truth to speak upon the issue joined, " without more respecting the oath, and it does not, appear that any objection was made to the form of the oath administered, it is presumed that the jury were properly sworn.

5. Failure of the record in a felony case to show that, upon an adjournment, the court instructed the officer into whose charge the jury were given to keep them together, and not to converse with them, or permit any one else to do so, is not ground for setting aside the verdict. Although it is usual and proper to give such instruction, the law does not require it, for the statute makes it the duty of the officer to do the things above mentioned without any instruction.

6. When, in a trial of a felony case, the court instructs the jury, at the instance of the defendant, that, in order to convict, they must believe from the evidence beyond all reasonable doubt that the accused is guilty, it is not error to give, at the instance of the state, another instruction to the effect that such reasonable doubt is not a vague or uncertain doubt, and that what the jury believe from the evidence as men they should believe as jurors.

7. The giving, in such case, of the following instruction, though not as perspicuous as it ought to be, is not error: "The court instructs the jury that, to convict a person of murder, it is not necessary that malice should have existed in the heart of the accused against the deceased, and if they believe from the evidence that the accused, with a deadly weapon, shot and killed the said Julia Simmons, the intent and the malice may both be inferred from such act."

8. Instructions to the jury must be taken and read as a whole, and if, upon being so read and construed, they state the law correctly, and do not misstate it in any particular, and no proper instruction asked for has been refused, the verdict will not be disturbed on the ground that additional proper instructions could have been given, or that some particular instruction, standing alone, might tend to mislead the jury.

(Syllabus by the Court.)

Error to Circuit Court, Pocahontas County; J. M. McWhorter, Judge.

Jerome Kellison was convicted of murder In the first degree, and brings error. Affirmed.

C. H. Scott, for plaintiff in error.

The Attorney General, for the State.

POFFENBARGER, P. Jerome Kellison, convicted of murder of the first degree in the circuit court of Pocahontas county, and' sentenced to life imprisonment, complains of alleged errors in the judgment. The order entered on the 4th day of October, 1899, merely shows the return of the indictment, and no other order in the case was made until the 2d day of October, 1901, when the accused was arraigned, and entered his plea of not guilty and took a continuance. As more than three regular terms of the court, after the finding of the indictment, had passed without a trial, and the record did not show any of the reasons therefor that, under the statute (section 25, c. 159, of the Code of 1899), excuse such failure, it is said that he was entitled to his discharge from prosecution for the offense. "Every person charged with felony, and remanded to a circuit court for trial, shall be forever discharged from prosecution for the offense" if there be such failure, unless certain specified reasons therefor are shown. The accused does not appear by the record to be within the provisions of this statute. It does not show that more than three terms had passed without a trial after he was taken into custody. He had not been arraigned, nor entered any plea, nor, so far as is disclosed by the record, had he been remanded to the circuit court for trial. There can be no presumption that at any time before October, 1901, he had demanded or desired a trial, or was so situated that the court could try him. The fact is, as shown by the testimony, that he was never arrested on the charge until May, 1901. Had he moved for a discharge before going to trial, this fact would have precluded it If, after trial and conviction, he could demand his discharge in this court at this late day, that fact would clearly bar him here, as the record shows it. The word "remanded" in said section is not consistent with the present statutory provisions relating to procedure in felony cases. Since the necessity of a preliminary examination as a prerequisite to trial has been dispensed with, and indictments are no longer found in courts having no jurisdiction to try on charges of felony, the expression is inaccurate. But under the Code of I860, and the statutes as they existed prior thereto, it was consistent with other provisions, and only applied to persons in custody or under recognizance. Hence it can only apply under such conditions now, and is to be construed as if it read "held" for trial, instead of "remanded" for trial. In Virginia the statute, as amended, so reads. Kibler v. Com., 94 Va. 804, 26 S. E. 858.

No order entered in the case, except the one in which the verdict is recorded discloses that the accused had the assistance of counsel, and an assignment of error is based upon the failure of the record to show that fact. The trial seems to have been in progress on three successive days, but there is no mention of counsel until the third day Nothing in this record indicates that he asked for the assistance of counsel, or that he was denied it, or that he did not have it. The Constitution does not make assistance of counsel a prerequisite to conviction as it does a trial by jury. The clause contains no prohibitory language. It only says he shall have the assistance of counsel. The common law did not permit persons charged with felony to have the advice and assistance of counsel, and this clause of section 14 of article 3 of the Constitution was inserted to cure the shameful defect of the common law in this respect by guarantying said right to such persons. Cooley's Const. Lim. 474. Even if said clause makes it the duty of the state to furnish counsel when demanded, it does not follow that such action is to be taken unless demand therefor has been made, nor that the silence of the record on the subject raises a presumption of the denial of the privilege. This clause is in the same section with the one which says the accused shall be confronted with the witnesses against him, under which it has been held to be reversible error to permit the examination of witnesses in the absence of the accused. State v. Sheppard, 49 W. Va. 582, 39 S. E. 676; State v. Greer, 22 W. Va. 800; State v. Sutfln, Id. 771; State v. Conkle, 16 W. Va. 736; Younger v. State, 2 W. Va. 579, 98 Am. Dee. 791. In those cases it was held that the record must affirmatively show the presence of the accused at all stages of the trial. But in arriving at that conclusion the court very properly read that clause in connection with the constitutional inhibition of a conviction without a trial by jury, and the testimony of the witnesses is an inseparable part of the trial. The assistance of counsel is a matter of a different kind. Both at common law and under our Constitution a trial in a felony case may be had without the assistance of counsel. The prisoner himself may be learned in the law, and skilled in its practice. Can it be said that it is the duty of the court, or was the intention of the framers of the Constitution, to compel a man to accept the assistance of counsel whether he desires it or not? Even in the case of the personal presence of the accused at the trial, the presumption of regularity operates to some extent. It is sufficient to show his presence at the commencement of the proceedings of any day, and, if the record does not affirmatively show his absence thereafter, his presence is presumed to have continued throughout the session.

Although it appears from the record that the jury were selected and tried, an assignment of error is predicated upon the failure of the order to say they were "good and lawful men, " but it is not insisted upon in the argument The record shows no objection to the jurors, or any of them, on the ground of incompetence or disqualification, and, as a rule, there is a presumption in favor of the regularity of the proceedings of a court of general jurisdiction. In felony cases there are some exceptions to the rule, but no reason is perceived why the record should affirmatively show these formal words. The observations hereinafter made respecting the oath of the jurors apply here with equal force.

Another objection is that the jury were not sworn to return a verdict according to the law and the evidence. The order recites that they were "sworn the truth to speak upon the issue joined." Under several decisions of this court this is sufficient. The record does not purport to set out the form...

To continue reading

Request your trial
75 cases
  • Betts v. Brady
    • United States
    • U.S. Supreme Court
    • June 1, 1942
    ...41, 49, 59, 24 A.2d 1. VIRGINIA: Watkins v. Commonwealth, 1940, 174 Va. 518, 521—525, 6 S.E.2d 6709 WEST VIRGINIA: State v. Kellison, 1904, 56 W.Va. 690, 692, 693, 47 S.E. 166. WISCONSIN: Carpenter v. Dane County, 1859, 9 Wis. 274. See Stat.1941, § C. By constitutional provision. GEORGIA: C......
  • Bowman v. Leverette
    • United States
    • West Virginia Supreme Court
    • March 19, 1982
    ...the initial clause of Pendry -type instructions many years ago. See, Syl. pt. 11, State v. Cain, 20 W.Va. 679 (1882); State v. Kellison, 56 W.Va. 690, 47 S.E. 166 (1904); State v. Reppert, 132 W.Va. 675, 694-95, 52 S.E.2d 820, 832 (1949) and the decisions cited therein." State v. O'Connell,......
  • State ex rel. Farley v. Kramer
    • United States
    • West Virginia Supreme Court
    • July 24, 1969
    ...upon the charge of murder set forth in the first indictment is utterly unfounded in fact and in law. Unlike the case of State v. Kellison, 56 W.Va. 690, 47 S.E. 166, in which the defendant, though indicted, was not arrested or placed under bond and in consequence was not remanded or held fo......
  • State v. Harlow, 10436
    • United States
    • West Virginia Supreme Court
    • June 24, 1952
    ...78 S.E. 59; Styles v. Chesapeake & O. Railway Co., 62 W.Va. 650, 59 S.E. 609; State v. Clifford, 59 W.Va. 1, 52 S.E. 981; State v. Kellison, 56 W.Va. 690, 47 S.E. 166; 10 M.J., Instructions, Section 47; 53 Am.Jur., Trial, Section We think the above authorities make it clear that State's Ins......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT