State v. King

• Decision Date: 26 October 1954
• Docket Number: No. 10659,10659
• Citation: 140 W.Va. 362,84 S.E.2d 313,47 A.L.R.2d 878
• Court: West Virginia Supreme Court
• Parties: , 47 A.L.R.2d 878 STATE of West Virginia, v. Lewis M. KING. Case

Page 313

84 S.E.2d 313

140 W.Va. 362, 47 A.L.R.2d 878

STATE of West Virginia, v. Lewis M. KING.

Case No. 10659.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 14, 1954.

Decided Oct. 26, 1954.

Syllabus by the Court.

1. Under Code, 61-11-1, as amended and reenacted by Section 1, Article 11, Chapter 61, Acts of the Legislature, Regular Session, 1947, providing for the classification of offenses, and Code, 61-2-9, providing that malicious wounding and unlawful wounding, as defined in the statute, are felonies, an indictment charging malicious wounding with intent 'to maim, disfigure, disable, and kill' the person alleged to have been wounded, charges a felony.

2. At common law and under the general provisions of Code, 61-11-1, as amended and reenacted by Section 1, Article 11, Chapter 61, Acts of the Legislature, Regular Session, 1947, providing for the classification of offenses, the crime of assault and battery is a misdemeanor.

3. Notwithstanding that the crime of assault and battery is not expressly included in the provisions of Code, 61-2-9, providing for the crimes of malicious wounding and unlawful wounding, the penalties therefor, and that such crimes shall constitute felonies, a conviction for assault and battery, under the provisions of Code, 62-3-14, may be had in a prosecution for the crime of malicious or unlawful wounding provided for in Code, 61-2-9.

4. In a criminal prosecution, under an indictment which charges the defendant with the commission of a felony, under Code, 61-2-9, in which defendant was found guilty of assault and battery, the conviction is subject to the limitation for the prosecution of misdemeanors contained in Code, 61-11-9.

5. The provision of Code, 61-11-9, which provides that 'A prosecution for a misdemeanor shall be commenced within one year after the offense was committed, * * *', read in pari materia with Code, 62-2-1, which provides that 'Prosecutions for offenses against the State, unless otherwise provided, shall be by presentment or indictment' serves to bar a conviction of a misdemeanor had under an indictment for a felony, which embraces the misdemeanor, where the indictment was not returned within one year after the offense charged therein was committed.

6. Where, in a criminal prosecution, a conviction for assault and battery is had under an indictment charging the defendant with the commission of a felony, under Code, 61-2-9, which indictment was not returned within one year after the offense charged in the indictment was committed, the conviction is barred under Code, 61-11-9, and is void; and where the trial court has overruled the defendant's motions to set aside the verdict of the jury, grant a new trial, and in arrest of judgment, as well as defendant's motion that he be discharged from custody, this Court on writ of error will reverse the judgment of the trial court, set aside the verdict of the jury, and discharge the defendant from custody.

Baker & Armistead and Chas. G. Baker, Morgantown, for plaintiff in error.

John G. Fox, Atty. Gen., Fred H. Caplan, Asst. Atty. Gen., for defendant in error.

RILEY, Judge.

In this criminal prosecution of State of West Virginia against Lewis M. King, the defendant was indicted by a grand jury convened at the October term, 1953, of the Circuit Court of Monongalia County, for the commission of a felonious assault. Upon arraignment the defendant entered a plea of 'Not guilty'. A trial by jury was had, at which the defendant was found guilty of assault and battery. The defendant then moved the circuit court that the verdict be set aside and a new trial awarded, and that the circuit court arrest judgment because of errors manifest on the record. Upon the overruling of defendant's motions, the defendant moved that he be discharged from custody, which motion was likewise overruled. The trial court, acting on the basis of the verdict of the jury, sentenced the defendant to be confined in the jail of Monongalia County for the period of one year and until the costs awarded against the defendant should be paid. To the judgment of conviction and the order of the trial court in overruling defendant's motion that he be discharged from custody, this writ of error is prosecuted.

The indictment, containing two counts, charged the defendant with felonious assault, that is, malicious assault under Code, 61-2-9, which section provides expressly that both malicious and unlawful assault are felonies. The first count of the indictment charges that on the ___ day of October 1951, the defendant made an assault upon one Phillip Michael Harner and 'the said Phillip Michael Harner, unlawfully, feloniously and maliciously did shoot, cut, stab and wound, and did thereby cause him bodily injury, with intent him, * * *, then and there to maim, disfigure, disable and kill.' The second count of the indictment charges that the defendant on the ___ day of October, 1951, forced Phillip Michael Harner to sit on a bucket of ice for a long time in the nighttime and, with his foot, did 'force the said Phillip Michael Harner to sit on the screening and register of a floor furnace when the said screening and register of said floor furnace were hot, and did unlawfully, feloniously and maliciously cut, wound and burn the said Phillip Michael Harner, with intent * * * then and there to maim, disfigure, disable and kill.'

The indictment was found under the first part of Code, 61-2-9, which, in providing for malicious assault and the penalty therefor, employs the following language: 'If any person maliciously shoot, stab, cut or wound any person, or by any means cause him bodily injury with intent to maim, disfigure, disable or kill, he shall, except where it is otherwise provided, be guilty of a felony, and, upon conviction, shall be punished by confinement in the penitentiary not less than two nor more than ten years.'

The crime charged in the indictment to have been committed in October, 1951, is a felony, not only from the express wording of the statute under which the indictment was had, but under Section 1, Article 11, Chapter 61, Acts of the Legislature, Regular Session, 1947, amending and reenacting Code, 61-11-1, classifying offenses as being either felonies or misdemeanors, which provides: 'Such offenses as are punishable with death or confinement in the penitentiary are felonies; all other offenses are misdemeanors.' Notwithstanding the defendant was charged in the indictment with having committed a felony, he was by the verdict of the jury found guilty of assault and battery, which is a misdemeanor.

Simple assault, as distinguished from malicious assault and unlawful assault, is an offense at common law, and punishable as a misdemeanor. State v. McKain, 56 W.Va. 128, 49 S.E. 20; Canada v. Commonwealth, 22 Grat. 899, 63 Va. 899; 2 M. J., Assault and Battery, Section 1. In the syllabus of the McKain case, this Court held: 'Assault and battery is an offense at common law, and cognizable as such by our circuit courts, and other courts which exercise like jurisdiction in such cases. Upon conviction of the accused upon an indictment for assault and battery, the court may impose upon him a fine, or imprisonment, or both, at its discretion, limited only by the constitutional inhibition that excessive fines shall not be imposed, nor cruel and unusual punishment inflicted.'

The defendant, having been indicted for a felony under Code, 61-2-9, which includes, though not expressly, the misdemeanor of assault and battery, and having been convicted of assault and battery, the sole question presented by this record is whether the conviction for a misdemeanor is void under Code, 61-11-9, the pertinent part of which reads: 'A prosecution for a misdemeanor shall be commenced within one year after the offense was committed, * * *.'

The attorney general relies upon Code, 62-3-14, which provides: 'If a person indicted for a felony be by the jury acquitted of part and convicted of part of the offense charged, he shall be sentenced by the court for such part as he is so convicted of, if the same be substantially charged in the indictment, whether it be felony or misdemeanor'; and upon the language of this Court in State v. Smith, 130 W.Va. 183, 43 S.E.2d 802, 804, in which this Court, in construing Code, 62-3-14, stated that 'The fact that under Code, 62-3-14, a misdemeanor verdict may be returned and that the court may instruct the jury, as here, concerning only a misdemeanor conviction because in its judgment the evidence justifies that only, does not alter the fact that trial under an indictment drafted in the language of Code, 61-2-9, must be regarded as a felony prosecution; * * *.' This Court stated in the opinion in the Smith case, that the defendant could not have been convicted of a felony, for the reason that the word 'feloniously', which the Court stated is 'a word of art, necessarily used in a felony indictment * * *', was omitted from the indictment. In the Smith case the Court, in reversing the judgment of conviction, setting aside the verdict of the jury, and awarding defendant a new trial on the basis of the trial court's error in giving over defendant's objection State's instruction No. 1, addressed itself to the question whether a conviction for a misdemeanor could be had under an indictment, drawn under Code, 61-2-9, though the indictment, as an indictment for a felony is defective, because the word 'feloniously' was omitted therefrom, and stated: 'However, in spite of the fact that no misdemeanor is mentioned in the section under which the indictment was drawn, plainly under the provisions of Code, 62-3-14, a verdict for a simple assault punishable as for a misdemeanor, and not based upon a finding of intention to permanently injure, is to be sustained.' Bearing more pertinently on the question immediately before us is the case of State v. Craft, 131 W.Va. 195, 47 S.E.2d 681, in which this Court affirmed a judgment of...