State v. McKain

• Decision Date: 01 November 1904
• Citation: 49 S.E. 20,56 W.Va. 128
• Parties: STATE v. McKAIN.
• Court: West Virginia Supreme Court

49 S.E. 20

56 W.Va. 128

STATE v. McKAIN.

Supreme Court of Appeals of West Virginia.

November 1, 1904

Submitted September 9, 1904.

Syllabus by the Court.

1. 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.

Error from Circuit Court, Marion County; John W. Mason, Judge.

Charles J. McKain was convicted of assault, and brings error. Affirmed.

C. H Leeds, for plaintiff in error.

C Powell, Atty. Gen., and E. K. Reedy, for the State.

MILLER J.

C. J McKain was indicted in the circuit court of Marion county for assault and battery upon Mrs. J. H. Downey. The indictment is in the usual form. It was certified by the circuit court to the "intermediate court" of that county, in pursuance of the act of the Legislature relating thereto, and was therein docketed for trial. Afterwards, in the last-mentioned court, the defendant asked leave to file his special plea in writing of autrefois acquit, which being objected to by the state, the objection was sustained, and leave to file the same was refused. Thereupon the defendant excepted to the ruling of the court. The defendant then entered his plea of not guilty, upon which issue was joined, and a jury, after hearing all of the evidence adduced by both the state and the defendant, found the defendant guilty of an assault. A motion by the defendant to set aside the verdict and grant him a new trial was overruled by the court, and a judgment was then rendered that the state recover from the defendant a fine of $25 and the costs of the prosecution, and that the defendant be also imprisoned in the county jail for the period of 60 days. A writ of error to this judgment was refused by the circuit court of said county, but on petition of defendant such writ, with supersedeas, was allowed by one of the judges of this court.

Plaintiff in error insists that the rejection of his special plea, the introduction of certain evidence objected to by him, the refusal to allow other evidence offered by him to go to the jury, and the refusal of the court to set aside the verdict and grant him a new trial on the ground that said verdict was and is contrary to the evidence, were and are prejudicial to him. All the evidence given to the jury is made part of the record. The paper offered by defendant as his plea of autrefois acquit is in the words and figures following "And the said Charles J. McKain, in his own proper person, here now comes into court, and, having heard the said indictment read to him, says: That the state ought not further to prosecute the said indictment against him, the said Charles J. McKain, because he says that heretofore, to wit, on the 26th day of May, 1902, before A. L. Lehman, mayor of the city of Fairmont, Marion county, W. Va., at the office of said mayor, in said city, county, and state, he, the said Charles J. McKain, was tried and acquitted for and of the said offense charged in the said indictment against him; that the said Henry Downey, one of the prosecuting witnesses named in the said indictment, was on the day and year aforesaid a special officer or policeman in the employ of the Baltimore and Ohio Railroad Company, a corporation; that he, the said Henry Downey, on the _______ day of May, 1902, arrested him, the said Charles J. McKain, while he, the said Charles J. McKain, was a passenger at the Baltimore and Ohio Passenger Depot, in the said city of Fairmont, and confined him, the said Charles J. McKain, in the jail of said city of Fairmont; that on the day and year first above mentioned, he, the said Henry Downey, appeared before the said A. L. Lehman, mayor. then and there mayor of said city of Fairmont, as aforesaid, and preferred charges and made information against him, the said Charles J. McKain, to wit, on the day and year last aforesaid was and had been guilty of drunkenness and disorderly conduct, on which said charge the said mayor on the day and year first above mentioned tried the said Charles J. McKain, and, after hearing all of the evidence...