State v. Newsom.

• Decision Date: 07 September 1878
• Parties: State v. Newsom.
• Court: West Virginia Supreme Court

13 W.Va. 859

State

v.Newsom.

Supreme Court of Appeals of West Virginia.

Decided September 7, 1878.

1. Upon an indictment under the act concerning malicious and

unlawful shooting, &c. (Code 1869, ch. 144, §9j, which charges, that the prisoner," with a certain pistol or revolver, &c, feloniously-and with his malice aforethought, did shoot one Lewis Dempsey, Jr., with intent, v &c, ithe jury found the prisoner "guilty of unlawful shooting, with intent, ''' &c, without saying whom he shot, and fixed the term of his imprisonment in the penitentiary at one year. Held:

The court did not err in overruling the motiou to quash, and in overruling the demurrer to the indictment, because, although it alleged the weapon in the alternative, as a " pistol or revolver" the expression " or revolver" was mere surplusage, and could be rejected, and therefore. need not be proved.

2. The cause was continued twice by the State, and once "for

reasons appearing to the court." Held:

It is the duty of the prisoner to show, that that continuance was not granted for the causes declared by statute. Code_ ch. 159, #25; as the court will not reverse, unless error ap pear affirmatively in the record; and the prisoner is not therefore entitled to a discharge.

3. No judgrnentcan be entered upon the verdict, because it is too vague, indefinite and uncertain.

The circuit court of Logan county, on the 25th day of April, 1878, rendered judgment against James Newsom on an indictment against him for teiony.

This is a writ of error, granted on the petition of said Newsom to the judgment of said court then rendered.

Hon. Evermont Ward, judge of the ninth judicial circuit, rendered the judgment complained of.

The facts of the case sufficiently appear in the opinion of the Court.

C. C. Watts, of counsel for plaintiff in error, relied on the following authorities:

1 Bishop's Crim. Pro. (2d ed.) §1006; Id. §1016; 21 Pick. 509; Starkie's Crim. PI. 392; 2 Hawk. Ch. p. 47, §9; 4 Burr. 2073; 4 W. Va. 729; 3 Gra. & Wat. New Trials 1378, et seq. and cases cited; Id. 1384 et seq., and cases cited; Archbald Crim. Pr. & PI. 666.

Robert White, Attorney General, for the State, cited the following authorities:

7 Gratt 592; 5 W. Va. 508; Code 721, §25; 2 Va. Ca. 363; Id. 564; Id. 74; 1 Rob. 731; 8 Gratt. 661; 1 Bish. Or. Pr. §106; 21 Pick. 509; 3 Gra. & Wat. New Trials 1377; 4 W. Va. 729; 28 Gratt. 922.

Moore, Judge, delivered the opinion of the Court:

At a circuit court continued and held for Logan county, on the 13th day of October, 1876, the grand jury found an indictment against the defendant, consisting of the following two counts:

uThat James Newsom, on the 1st day September, 1876, in the said county, with a certain pistol or revolver then and there loaded with gun powder and leaden balls, feloniously and with his malice aforethought, did shoot one Lewis Dempsey, Jr., with intent him the said Lewis Dempsey, Jr., then and there to maim, disfigure, disable and kill, against the peace and dignity of the State. And the jurors aforesaid upon their oaths aforesaid, do further present, that James Newsom, on the 1st day of September, 1876, in said county, with a certain revolver then and there loaded with gun powder and leaden balls, unlawfully, feloniously and maliciously did shoot one Lewis Dempsey, Jr., then and there to maim, disfigure," disable and kill, against the peace and dignity of the State."

On the same day "came the State by her attorney, as well as the defendant by C. W. Smith, Esq., his attorney, who moved the court to quash the indictment in this cause, and demurred to each and every count thereof; and for plea saith, that he is not guilty in manner and form, as the State in her indictment against him hath alleged, and of this he puts himself upon the county; and the State doth the like; and this cause is continued until the first day of the next term."

On motion of the defendant he was admitted to bail. On April 23, 1877, the defendant appeared; and on motion of the attorney for the State, the cause was continned; and on the 24th day of September, 1877, the defendant appeared, "and for reasons appearing to the court," the cause was continued; and on the 22d day of April, 1878, the prisoner appeared "in his own proper person;" and the prisoner moved the court to quash the indictment and each count thereof, which motion was overruled, as to the first count, and sustained as to the second count; and the prisoner thereupon demurred to the indictment and the first count thereof, which demurrer was overruled, and he thereupon pleaded "not guilty in manner and form as alleged in the indictment;" and issue was joined; and a jury came, and after hearing the evidence, &c, returned a verdict in the following language:" We the jury, find the prisoner, James Newsom, guilty of unlawful shooting, with intent to maim, disable, disfigure and kill, and ascertain the term of his confinement in the penitentiary at one year; and we find him not guilty of malicious shooting."

Thereupon the prisoner moved the court to set aside the verdict, as being contrary to the evidence, which motion was overruled; and thereupon the prisoner moved in arrest of judgment, which was also overruled; and sentence was pronounced according to verdict.

Upon the writ of error allowed, the prisoner here assigns as error: First, overruling his motion to qnash the first count in the indictment. Second, overruling the demurrer to the indictment and first count thereof. Third, in putting him on trial after the third continuance of the cause. Fourth, in refusing to set aside the verdict on account of uncertainty therein.

The offense is declared by statute, Code 1869, chapter 144, secton 9: "If any person maliciously shoot * * with intent to disfigure, disable, maim or kill, he shall, except where it is otherwise provided, be punished by confinement in the penitentiary not less than two nor more than ten years. If such act be done unlawfully, but not maliciously, with the intent aforesaid, the offender shall, at the discretion of the jury, either be confined in the penitentiary not less than one nor more than five years, or be confined in jail not exceeding twelve months, and fined not exceeding five hundred dollars."

The first and second assignments of error are merely technical, not even urged in argument. It would be exceedingly technical, to quash an indictment, or sustain a demurrer thereto, because it laid the weapon in the alternative. A revolver is a pistol; and even if it should be material to allege a weapon in such a case, under the plain rule, that all, that is surplusage, may be rejected as mere waste material to be passed unnoticed, and need not be proved," the alternate allegation, "or revolver," if rejected, would still leave enough to meet the requirement of the law; and the indictment is therefore good. Bish. Crim. Pro. §229, &c.

The third assignment is not argued; prudently so. The defendant must show, that the case was not continued upon his motion, or for the statutory cause. The record shows, that it was twice continued at the instance of the State; but the other continuance was "for reasons appearing to the court." For aught this Court knows, that continuance was at the instance of the defendant, or granted for the causes declared by statute. Code, ch. 159, §25. It was in his power, and it was his duty, to show, that it was not; and having failed to do so, he must take the consequences, and is not entitled to a discharge under the statute. Code, p. 721, §25.

The fourth objection is, that the verdict is uncertain, because it does not find the prisoner guilty of unlawful shooting," as charged in the indictmentnor does it find, whom the defendant unlawfully shot, if any person. The 20th section of chapter 159, Code, p. 720, declares, that," on any indictment for maliciously shooting stabbing, cutting or wounding a person, or by any means causing him bodily injury, with intent to kill him, the jury may find the accused not guilty of the offense charged, but guilty of maliciously doing such act with intent to maim, disfigure or disable, or unlawfully doing it, with intent to maim, disable, or kill such person."

In Randall's case, 24 Gratt. 644, the jury, on an indictment under statutes similar to ours, by verdict found the prisoner " guilty of malicious shooting" without saying whom he shot. Moncure, Judge, delivering the opinion of the court on that point, merely states, that in his petition for the writ of error the prisoner "assigned sundry errors in the said judgment, one of which is, that the verdict found him guilty ol no offense at all, having found him guilty merely of malicious shooting. The Attorney-General rightly admitted, that this error was well assigned: and that for this error the judgment would have to be reversed. If this were the only error in the case it would have to be remanded to the circuit court for new trial, to be had therein upon said indictment.

The judgment of the court, on that point, was " that the verdict found by the jury in this case is fatally defective in finding the prisoner guitly of ' malicious shooting' merely, which, in itself, is no offense at all; and if that were the only error in the judgment, it would be proper to reverse the judgment, set aside the verdict, and remand the cause for a new trial," &c.

In HobacFs case, 28 Gratt. 922, Judge Moncure, in commenting on Randall's ease, at page 928, explanatory of his meaning and in discriminating the Randall ease from HobacFs, says: "Now if the jury, in response to the indictment, and to the question propounded to them by the clerk, when they came into court to render their verdict, had simply pronounced the prisoner "guilty," it would have been all sufficient, and have had the same effect, as if they had repeated after the word guilty, '' the whole charge, contained in the indictment, in manner and form as therein made; but they found him guilty ' of malicious shooting, ' without...