State v. Runyon

• Decision Date: 26 January 1926
• Docket Number: (C. C. No. 372.)
• Citation: 131 S.E. 466
• Court: West Virginia Supreme Court
• Parties: STATE. v. RUNYON.

131 S.E. 466

STATE.

v.RUNYON.

(C. C. No. 372.)

Supreme Court of Appeals of West Virginia.

Jan. 26, 1926.

(Syllabus by the Court.)

Certified Question from Circuit Court, Mingo County.

Joe Runyon was prosecuted for murder, and, after holding a plea of autrefois acquit insufficient, the court certified a question. Ruling affirmed.

Howard B. Lee. Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

Bronson & Straton, of Williamson, for defendant.

LIVELY, J. The trial court, on its own motion, certified its action in holding insufficient a plea of autrefois acquit tendered by the defendant, Joe Runyon.

Runyon was indicted for murder at the April term, 1924, of the lower court. The indictment charged that the accused, "on the ——— day of December, 1924, * * * did slay, kill and murder one George Coten." Upon the trial of the case, defendant's demurrer to the indictment was overruled, and he entered a plea of not guilty. Evidence was taken, instructions given, and arguments made. After the jury had retired to consider their verdict, the court, on motion of the state's attorney, directed the jury to be brought back from their room, permitted a juror to be withdrawn, and discharged the jury, to which action and ruling the defendant excepted.

At the April term, 1925, the grand jury returned another indictment charging that the defendant "on the 23d day of December, 1923, * * * did slay, kill and murder one George Coten." And at the following July term of the court the defendant filed his plea of autrefois acquit, which, upon motion of the state's attorney, was stricken from the record.

The question presented by this certification is whether the first indictment upon which defendant was put on trial was a valid indictment and sufficient to sustain a conviction of the offense charged. If the formal accusation was insufficient to support a conviction of the crime charged, the defendant was not placed in jeopardy by the trial upon the defective indictment.

The great weight of authority in this country supports the rule that, in the absence of statute, an indictment is fatally defective if it charges the commission of an offense subsequent to the date upon which the indictment is found. 14 R. C. L. § 26, p. 179; 31 C. J. § 213, p. 683; note in 6 Ann. Cas. p. 854; Terrell v. State, 165 Ind. 443, 75 N. E. 884, 2 L. R. A. (N. S.) 251, 112 Am. St. Rep. 244, 6 Ann. Cas. 851, and decisions there cited; Shonfield v. State (Ind. Sup. 1925) 149 N. E. 53; People v. Van Every, 222 N. Y. 74, 118 N. E. 244, 7 A. L. R. 1507.

"The general rule applicable to criminal procedure is that the time of the alleged commission of an offense, as stated in the indictment or information, must not be shown on the face of such pleading to be subsequent to the return of the indictment or the filing of the information, but must appear to be anterior or prior thereto. If the time of the commission of the crime is disclosed to antecede the return of the indictment, then the time stated must not appear to be so long prior to the return as to bring the case beyond the statute of limitations, provided it is one to which the latter statute applies. The general rule above asserted is one well settled by our own decisions and other authorities, except so far as it can be said to be abrogated by statute." Terrell v. State, 165 Ind. 443, 75 N. E. 884, 2 L. R. A. (N. S.) 251, 112 Am. St. Rep. 244, 6 Ann. Cas. 851.

The defendant contends that under section 10 of chapter 158, Code, which provides that no indictment shall be held invalid for omitting to state, or stating imperfectly, the time of the commission of an offense, when time is not of the essence of the offense, the indictment was not defective and was sufficient to sustain a conviction of the crime charged. Indiana has a statute very similar to section 10 of chapter 158, Code. The Indiana law provides that—

"No indictment or information shall be deemed invalid, nor shall the same be set aside or quashed, * * * for any of the following defects: * * * Eighth. For omitting to statethe time at which the offense was committed in any case in which time is not the essence of the offense; nor for stating the time imperfectly, unless time is of the essence of the offense." Burns' Ann. St. 1001, § 1825.

In Terrell v. State, supra, it was held that the statute just quoted did not validate an indictment which alleged, as the time of the commission of the offense, an impossible date, such as a date in the future.

We have no direct decisions in this state on the question now presented, but the majority rule hereinbefore mentioned is approved by obiter dictum in at least two of our cases. In State v. Jones, 53 W. Va. 613, 614, 45 S. E. 916, 917, this court said:

"The date charged is immaterial, so it is not impossible, or after the finding of the indictment, or subject to the bar of the statute of limitations."

And in State v. Price, 90 W. Va. 365, 367, 110 S. E. 819, 820, Judge Miller said:

"In Indiana, where there is a statute similar to our section 10 of chapter 158 of the Code, an indictment which alleged the offense to have been committed on an impossible day in the future was held not cured by ...