State v. Roberts.
| Decision Date | 07 December 1901 |
| Citation | 50 W.Va. 422 |
| Court | West Virginia Supreme Court |
| Parties | State v. Roberts. |
1. Indictment Joint Separate Trials.
Upon a joint indictment for felony against several persons any defendant may elect, under section 8, chapter 159, Code, to be tried separately but is not entitled to demand to be tried jointly, (p. 424).
2. Indictment Go-Defendant Conspiracy.
Where a person is indicted jointly with others as principal in the commission of a robbery, it is error to instruct the jury that in case they believe from the evidence beyond a reasonable doubt that the defendant on trial conspired with his co-defendants or any one of them to commit the offense, they should find him guilty, although he may not have been present at the time the robbery was committed. (p. 424).
3. Conspirator Accessory Before the Fact.
A conspirator who is absent at the time the felony is committed, taking no part in the actual commission of the offense, is an accessory before the fact and can only be indicted and punished as such. (p. 425).
4. Accessory Indictment Jointly Separately.
buch accessory may be indicted either with the principal or separately, but in either case he must be indicted as accessory and not as principal. (p. 425).
5. Indictment Principal Accessory.
An accessory before the fact to a felony cannot be convicted on an indictment against him as principal. (p. 426).
6. Indictment Record of Finding Essential.
The record of the finding of the grand jury is essential, as the only legal proof of the finding of the indictment, and without such record the indictment cannot be maintained. (p. 430).
Error to Circuit Court, Mingo County.
Jacob Roberts was convicted of robbery, and brings error.
Reversed.
F. H. Evans and J. L. Stafford, for plaintiff in error.
Romeo H. Freer, Atty. Gen., and Alex Dulin, for the State.
This is a prosecution upon an indictment in the circuit court of Mingo County for the robbery of B. C. Bateman against Jacob Roberts indicted jointly as principal with four others named, tried at the May term, 1901, of said court as to said Roberts, a verdict of guilty was rendered by a jury and judgment entered thereon, the defendant being sentimced to a term of years in the penitentiary. The defendant procured a writ of error and his first assignment is that the court erred in refusing to grant him a continuance of the case on the ground of the absence of material witnesses. The absent witnesses being Elijah Mounts, Sampy Hatfield, Bub Elswick and a Mrs. Johnson sister of the defendant Roberts, all of whom seimi to have been summoned except the sister. It appears that Elijah Mounts had met with a railroad accident a few days before the case was called for trial wherein he had lost both his legs and of course was unable to attend. It appears that Mounts was working with others on a raft in the river near to where the robbery occurred. On cross-examination Eoberts said that he did not know whether there were other witnesses present that knew the same facts that Mounts knew or not, and that Eoberts didn't know what witnesses he had there. On re-direct examination he was caused to say that he had no other witnesses that he could prove the same facts by that he expected to prove by said Mounts. As to the other witnesses, Hatfield lives on the opposite side of the river in Kentucky and James Eoberts, brother of the defendant, says he served notice on him to appear as a witness, that he came over on the West Virginia side to be served and said he would attend and that he was a good friend to the defendant. The witness James Eoberts was asked whether he had made any effort to get Bub Elswick, he said that he had sent his brother after him, that his brother got him but he got away from him. His brother, Coz Eoberts, testified that he had a subpoena for Bub Elswick, that he went up about a mile and ahalf above Panther to get him, he brought him to Gray, intending to bring him on to the place of trial, when he said he wanted to talk to Mr. Eied, the hotel man at Gray, he went across the walk and went away somewhere, witness did not know where, he hunted and inquired for him but failed to find him or get any further information about him. Dorcas Johnson, the defendant's sister, was not summoned. Defendant had notified her that he would have to use her as a witness, but some time before the trial she had gone off and her father nor mother did not know in particular where she was, he supposed her husband knew where she was and he was probably with her. The defendant admitted that he might have stated a short time before the trial that he did not expect to try the case at that term Evidently from the character of the testimony in support of the motion for a continuance, the trial court was satisfied that the apparent effort made on part of defendant to get ready for trial was simply a subterfuge to get ready for a continuance. "A motion for continuance is addressed to the sound discretion of the court under all the circumstances of the case; and, though an appellate court will supervise the action of an inferior court on such motion, it will not reverse the judgment on that ground, unless such action was plainly erroneous." State v. Harrison, 36 W. Va. 729, syl. pt. 7; State v. Lane, 44 W. Va. 730; Hewitrs Case, 17 Grat. 627. It is insisted that the court erred in compelling the prisoner to be tried separately when he demanded to be tried jointly with James Roberts, one of the parties with whom he was jointly indicted, the defendants Edmond Murphy and Thomas Hardin having been tried prior thereto, and cites in support of his proposition, section 8, chapter 159, Code, which provides, "If persons jointly indicted elect to be, or are tried separately, the panel in the case of each, shall be made up as provided in the third section of this chapter." This provision entitles the defendant to elect to be tried separately if he so chooses, but not to demand to be tried jointly. In Currans Case, 7 Grat. 619, syl. pt. 6, it is held, "Upon a joint indictment against several, the commonwealth may elect to try them separately." State v. Nash, 7 Iowa 347; Cruce v. State, 59 Ga. 83; Patterson v. The People, 46 Barber (K Y.) 625.
Defendant claims that court erred in giving instructions Nos. 1, 2 and 3 asked by the State and refusing to give instruction No. 4 asked by the prisoner and by giving instructions 1 and 3 as modified by the court. Instruction No. 1 asked by the State is as follows: "The court instructs the jury that if they believe from the evidence of this case, beyond a reasonable doubt, that the prisoner, Jacob Eoberts, and Malan Prater, James Eoberts, Thomas Hardin and Edmond Murphy, or any two of them, the prisoner being one, entered into a conspiracy for the purpose of robbing B. C. Bateman, the party named in tlie indictment in this case, of his money, and that in pnrsnance of said conspiracy and agreement Tliomas Hardin and Edmond Mnrphy, they, or eitlier of them, being armed with a deadly weapon, to-wit, a loaded gun, assaulted the said B. C. Bateman and put him in bodily fear, shot and wounded him, and by force took from the person of the said B. C. Bateman a certain sum of money mentioned and described in the indictment in this case, and did feloniously and violently steal, take and carry away said money, then you should find the prisoner guilty, although the prisoner may not have been present at the time the money was so taken from the person of the said B. C. Bateman." This is a joint indictment against all the defendants named therein as principals. As stated in Sharswood's Blackstone, Book 4, page 33, Section 8, chapter 152, Code, provides that, An accessory must be indicted as such whether indicted with the principal felon or separately. In Slate v. Lilly, 47 W. Va. 496, (35 S. E. 837), syl. pt. 2, "Under the laws of this State, to convict a person as an accessory to crime he must be indicted and tried as such." And in Hatchett's Case, 75 Va. 925, it is held, "An accessory to a felony cannot be prosecuted for a substantive offense,...
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