State v. Moore
| Decision Date | 14 February 1905 |
| Court | West Virginia Supreme Court |
| Parties | STATE v. MOORE et al. |
criminal law—trial—presence of accused —swearing jury.
1. Where a person is convicted of a felony, it must affirmatively appear from the record that the prisoner was present in court, and entered his plea in person to the indictment against him; and it is reversible error if the record fails to show this.
[Ed. Note.—For cases in point, see vol. 14, Cent Dig. Criminal Law, § 1466; vol. 15, Cent. Dig. Criminal Law, § 2766.]
2. There can be no legal conviction of a person for a felony unless the record shows that the jury which tried the case were duly sworn according to law.
(Syllabus by the Court.)
Error to Circuit Court Lewis County; W.
Oley Moore and others were convicted of murder, and bring error. Reversed.
E. A. Brannon, E. H. Morton, W. T. Talbott, and W. B. McGary, for plaintiffs in error.
Romeo H. Freer, Atty. Gen., E. K. Reedy, and J. M. Hoover, for defendant in error.
This is a writ of error to the judgment of the circuit court of Lewis county, sentencing the defendants to the penitentiary of this state. The prisoners were indicted for the murder of Benjamin
H. Edgar, and on the 29th day of May, 1904, were jointly tried, and Oley' Moore and Hanson Moore were found guilty of murder in the first degree, with recommendation that they be punished by confinement in the penitentiary. Robert Moore was found guilty of murder in the second degree. The defendants moved the court to set aside the verdict of the jury and to grant them a new trial, which motion was overruled, and the defendants were sentenced to confinement in the penitentiary of this state.
The defendants make several assignments of error, one of which is that the plea of not guilty was entered by their attorneys, and not by them in person. The order making up the issue in the case shows: "This day came the state by the prosecuting attorney, and the defendants in their proper persons and by attorneys, and the defendants, by attorneys, demurred to said indictment, and the said demurrer, being considered by the court, is overruled, and the defendants, by their attorneys, for plea, says that they are not guilty in manner, " etc. Before a person can be legally convicted of a felony, it is necessary that he be present in court, and plead to the indictment against him in person, and the record must affirmatively show this; and where the record shows that the plea was entered by attorney, and not by the prisoner in person, it is error, for which this court will reverse the judgment. The record in this case clearly shows that the plea was entered by the attorneys for the defendants. But it is argued by the attorneys for the state that inasmuch as the prisoners were present in court at the time their pleas were entered, and all that was done was done by their attorneys in their presence, this satisfies the law which requires that their pleas shall be entered by them in person, and that while it is, literally speaking, a plea by their attorneys, yet within the spirit and true meaning of the law, it should be regarded as being done by them in person, because what was done by their attorneys in their presence and at their direction is, in law, the doing of that particular act in person. This argument is not without reason, and comes with considerable force, but is made in the face of numerous decisions of this state and Virginia holding that the record must show the presence of the prisoner, and that he pleaded in person. This question has been before the court so often, and has been so clearly decided, and...
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...45 W.Va. 767, 32 S.E. 240 (1899); Crookham v. State, 5 W.Va. 510 (1871). Exemplifying the rigidity of this rule is State v. Moore, 57 W.Va. 146, 49 S.E. 1015 (1905), where the Court reversed jury convictions of first and second degree murder for two jointly indicted defendants because the r......
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