State v. Roberts

CourtSupreme Court of West Virginia
Writing for the CourtMeWHORTER
PartiesSTATE v. ROBERTS.
Decision Date07 December 1901

40 S.E. 484
50 W.Va.
422

STATE
v.
ROBERTS.

Supreme Court of Appeals of West Virginia.

Dec. 7, 1901.


JOINT INDICTMENT—JOINT TRIAL—INSTRUCTIONS.

1. Upon a joint indictment for felony against several persons, any defendant may elect, under section 8, c. 159, Code, to be tried separately, but is not entitled to demand to be tried jointly.

2. 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 codefendauts, 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.

3. 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.

4. Such accessory may be indicted either with the principal or separately, but in either case he must be indicted as accessory, and not as principal.

5. An accessory before the fact to a felony cannot be convicted on an indictment against him as principal.

6. 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.

(Syllabus by the Court.)

Error to circuit court, Mingo county; E. S. Doolittle, Judge.

Jacob Roberts was convicted of robbery, and brings error. Reversed.

P. H. Evans and J. L. Stafford, for plaintiff in error.

Romeo H. Freer, Atty. Gen., and Alex Dulin, for the State.

MeWHORTER, J. This is a prosecution upon an indictment in the circuit court of Mingo county for the robbery of B. C. Bate-man, against Jacob Roberts, indicted jointly as principal with four others named, and 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 sentenced 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 seem 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, Roberts said that he did not know whether there were other witnesses present that knew the same facts that Mounts knew or not, and that Roberts did not know what witnesses he had there. On redirect 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 Roberts, 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 Roberts 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 Roberts testified: That he had a subpoena for Bub Elswick. That he went up about a mile and a half, 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. Ried, 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 or 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, 15 S. E. 982, 18 L. R. A. 224 (Syl., point 7); State v. Lane, 44 W. Va. 730, 29 S. E. 1020; Hewitt's Case, 17 Grat. 627.

It is insisted that the court erred in com-

[40 S.E. 485]

pelling 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 Ed-mond Murphy and Thomas Hardin having been tried prior thereto, —and cites in support of his proposition section 8, c. 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 Cur-ran's Case, 7 Grat. 619 (Syl., point 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. People, 46 Barb. 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 Roberts, and Malan Prater, James Roberts, Thomas Hardin, and Edmond Murphy, or any two of them, the prisoner being one, entered into e conspiracy for the purpose of robbing B. C. Bateman, the party named in the indictment in this case, of his money, and that in pursuance of said conspiracy and agreement Thomas Hardin and Edmond Murphy, they, or either 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,...

To continue reading

Request your trial
32 practice notes
  • State ex rel. Muldrew v. Boles, No. 12687
    • United States
    • Supreme Court of West Virginia
    • 23 Enero 1968
    ...recognize the distinction between accessories and principals, and an accessory to be convicted must be indicted as such. State v. Roberts, 50 W.Va. 422, 40 S.E. 484; State v. Cremeans, 62 W.Va. 136, 57 S.E. 405. * * *.' State v. Powers, 91 W.Va. 737, 747, 113 S.E. 912, 916. Code, 1931, 61--......
  • State ex rel. Brown v. Thompson, No. 12448
    • United States
    • Supreme Court of West Virginia
    • 15 Junio 1965
    ...Page 716 737, 113 S.E. 912; State v. Bailey, 63 W.Va. 668, 60 S.E. 785; State v. Cremeans, 62 W.Va. 134, 57 S.E. 405; State v. Roberts, 50 W.Va. 422, 40 S.E. 484; Tasker v. Commonwealth, 202 Va. 1019, 121 S.E.2d 459; Snyder v. Commonwealth, 202 Va. 1009, 121 S.E.2d 452; Sloan v. Commonwealt......
  • State v. Petry, No. 14014
    • United States
    • Supreme Court of West Virginia
    • 16 Diciembre 1980
    ...Thompson, 149 W.Va. 649, 142 S.E.2d 711, cert. denied, Brown v. Thompson, 382 U.S. 940 (1965); syl. pt. 4, syl. pt. 5, State v. Roberts, 50 W.Va. 422, 40 S.E. 484 (1901); syl. pt. 2, State v. Lilly, 47 W.Va. 496, 35 S.E. 837 (1900). We also overrule: dicta expressed in State v. C. J. S., W.......
  • State v. Davis, No. 10637
    • United States
    • Supreme Court of West Virginia
    • 30 Marzo 1954
    ...at the time and place of the principal offense. State v. Ellison, 49 W.Va. 70, 73, 38 S.E. 574; State v. Roberts, 50 W.Va. 422, 426, 40 S.E. 484. An aider or abettor is one who is present at the time and place of the commission of the crime. Foster v. Commonwealth, 179 Va. 96, 18 S.E.2d 314......
  • Request a trial to view additional results
32 cases
  • State ex rel. Muldrew v. Boles, No. 12687
    • United States
    • Supreme Court of West Virginia
    • 23 Enero 1968
    ...recognize the distinction between accessories and principals, and an accessory to be convicted must be indicted as such. State v. Roberts, 50 W.Va. 422, 40 S.E. 484; State v. Cremeans, 62 W.Va. 136, 57 S.E. 405. * * *.' State v. Powers, 91 W.Va. 737, 747, 113 S.E. 912, 916. Code, 1931, 61--......
  • State ex rel. Brown v. Thompson, No. 12448
    • United States
    • Supreme Court of West Virginia
    • 15 Junio 1965
    ...Page 716 737, 113 S.E. 912; State v. Bailey, 63 W.Va. 668, 60 S.E. 785; State v. Cremeans, 62 W.Va. 134, 57 S.E. 405; State v. Roberts, 50 W.Va. 422, 40 S.E. 484; Tasker v. Commonwealth, 202 Va. 1019, 121 S.E.2d 459; Snyder v. Commonwealth, 202 Va. 1009, 121 S.E.2d 452; Sloan v. Commonwealt......
  • State v. Petry, No. 14014
    • United States
    • Supreme Court of West Virginia
    • 16 Diciembre 1980
    ...Thompson, 149 W.Va. 649, 142 S.E.2d 711, cert. denied, Brown v. Thompson, 382 U.S. 940 (1965); syl. pt. 4, syl. pt. 5, State v. Roberts, 50 W.Va. 422, 40 S.E. 484 (1901); syl. pt. 2, State v. Lilly, 47 W.Va. 496, 35 S.E. 837 (1900). We also overrule: dicta expressed in State v. C. J. S., W.......
  • State v. Davis, No. 10637
    • United States
    • Supreme Court of West Virginia
    • 30 Marzo 1954
    ...at the time and place of the principal offense. State v. Ellison, 49 W.Va. 70, 73, 38 S.E. 574; State v. Roberts, 50 W.Va. 422, 426, 40 S.E. 484. An aider or abettor is one who is present at the time and place of the commission of the crime. Foster v. Commonwealth, 179 Va. 96, 18 S.E.2d 314......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT