State v. Moneypenny.
| Decision Date | 20 November 1917 |
| Court | West Virginia Supreme Court |
| Parties | State v. Moneypenny. |
1. Criminal Law Trial Verdict.
A verdict in a criminal case should be read in connection with the indictment, and when so read, if its meaning' is certain, it is sufficient, (p. 365).
2. Homicide Verdict Shooting With Intent to Kill.
A verdict on the trial of a person charged in the language of Sec. 9, Ch. 144, Code, with maliciously shooting, stabbing, etc., with the intent therein named, returned in the following words:
" We the jury find the defendant not guilty of malicious assault upon Albert Moneypenny with intent to maim, disfigure, disable and kill as charged in the within indictment, but we do find the defendant guilty of unlawful assault upon Albert Moneypenny with intent to maim, disfigure, disable and kill as charged in the within indictment," finds the prisoner guilty of unlawfully, but not maliciously, committing the statutory offense with which he is charged, and not simply guilty of the technical, common-law offense of assault. (p. 365).
Error to Circuit Court, Lewis County.
Elias Moneypenny was convicted of maliciously shooting, cutting, and wounding with intent to maim, disfigure, disable, and kill, and he brings error.
Affirmed.
Brannon, Sfathers & Slathers, for plaintiff in error.
E. T. England, Attorney General, and Charles Ritchie, Assistant Attorney General, for the State.
Defendant was tried at the March term, 1917, on an indictment, found at the November term, 1916, charging him with unlawfully, maliciously and feloniously shooting, stabbing, cutting and wounding one Albert Moneypenny with intent to maim, disfigure, disable and kill him. At the November term defendant was arraigned in court and, being represented by counsel, demurred to the indictment. The court overruled the demurrer, whereupon he pleaded not guilty and issue was thereon joined and he was remanded to jail. At a later day of the term he, together with Zella Moneypenny as his surety, entered into a recognizance for his appearance at the first day of the next regular term. And at that term, which was the March term, 1917, he was tried and the jury brought in the following verdict: "We the jury find the defendant not guilty of malicious assault upon Albert Moneypenny with intent to maim, disfigure, disable and kill as charged in the within indictment, but we do find the defendant guilty of unlawful assault upon Albert Moneypenny with intent to maim, disfigure, disable and kill as charged in the within indictment." He moved the court to set aside the verdict and grant him a new trial, and the court took time to consider the motion, and, at a later day in the term, overruled his motion and rendered judgment that he be confined in the pentitentiary for a period of five years. He alleges error and asks to have the judgment reversed on several grounds: First, because the court erroneously refused to grant him a continuance.
The continuance was asked for on the ground that the prisoner was physically unable to stand the strain of a trial, or be of any assistance to his counsel in the conduct of his defense. Three physicians were put upon the witness stand and examined with reference to defendant's physical condition. One of them says he saw him on the Friday before and his temperature and pulse were above normal, temperature 100° and pulse 83 or 84, and he was in a nervous condition. This was Dr. Warder, who furnished him medicine at different times during the winter; he also says he thought his high pulse and temperature indicated biliousness, and he gave him two vegetable compound cathartic pills to reduce his temperature. If he took the x>ills, they apparently had the desired effect, because Dr. Reger says he saw him on the next day, Saturday, and found his temperature and pulse considerably below normal. Dr. Hamilton examined him about an hour before the trial was begun and says his temperature was then about a degree above normal and his pulse from ten
to twelve beats above normal. None of them made a sumsi w. Va. ciently minute examination of defendant to be able to state the cause of his apparent abnormal pulse and temperature, but all of them thought it would be a risk to his health to go through the ordeal of a trial at that time, that there was danger of a nervous collapse. It appears defendant had been at the home of one of his friends or relatives in the village of Roanoke for several days, just preceding the trial, and rode from there to Weston, a distance of several miles, on the train on the day of his trial, apparently without physical injury. The evidence taken on the trial of his guilt or...
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