State v. Schnelle.

• Decision Date: 26 April 1884
• Citation: 24 W.Va. 767
• Parties: State v. Schnelle.
• Court: West Virginia Supreme Court

24 W.Va. 767

State

v.Schnelle.

Supreme Court of Appeals of West Virginia.

Submitted January 26, 1884

Decided April 26, 1884.

1. Section 1 of chapter 118 of the Acts of the Legislature of 1882 declaring that "in an indictment for murder it shall not be necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it shall be sufficient in every such indictment to charge that the defendant did feloniously, wilfully, maliciously, deliberately and unlawfully slay, kill and murder the deceased," and the form therein pre^ scribed in accordance with the above declaration are constitutional, (p. 777.)

2. Such an indictment is not in violation of the fourteenth section of the bill of rights, which declares that in trials for crimes and misdemeanors " the accused shall be fully and plainly informed of the character and cause of the accusation," as such an indictment does fully and plainly inform the accused of the character and cause of the accusation, (p. 778.)

3. The character and cause of the accusation are essentially different from the mode by, or manner in which the deceased was killed. The Constitution does not require, that the accused shall be informed of the " manner, in which or the means, by which the death of deceased was caused, (p. 778.)

4. In this State there is no such thing as an indictment for murder in the first or second degree; the indictment is for murder, and it depends upon the proof, whether it is in the first or second degree, (p. 779.)

5 In a criminal case, no matter what the nature of the defence, the counsel for the prisoner is not entitled to open and close the argument to the jury. (p. 779.)

6.. The eleventh point of the syllabus in Cain's Case, 20 W. Va. 679, re-affirmed.

7.. The second point of the syllabus of Robinson's Case, 20 W. Va. 764, re-affirmed.

8. A previously formed and expressed opinion of the guilt or innocence of the accused is not of itself sufficient to disqualify a proposed juror. If such a proposed juror shows to the satisfaction of the court in his examination on his voir dire, that notwithstanding a previously formed and expressed opinion of the guilt or innocence of the accused his mind is free from bias and prejudice, and the contrary is not shown, he is a competent juror, and ought not be rejected, (p. 780.)

9. But if a proposed juror on his voir dire admits, that he has formed and expressed an opinion as to the guilt or innocence of the accused, and halts and hesitates as to his then condition of mind, and cannot say, that his mind is free from bias and prejudice, and cannot say, that the previously formed opinion will not influence his verdict, he is an incompetent juror and ought to be rejected, (p. 780.)

Johnson, President, furnishes the following statement ot the case:

On the 9th day of April, 1883, the defendant was indicted in the circuit court of Ohio county for the murder of Guen-ther Sehuchardt, in these words: "The State of West Virginia:

"First Judicial Grant, Ohio County, to-wit:

"In the Circuit Court of said County:

"The grand jurors of the State of West Virginia, in and for the body of the county of Ohio, and now attending the circuit court of the said county, upon their oaths present, that Guenther Schnelle, on the nineteenth clay of March. the year of Our Lord one thousand eight hundred and eigfn three in the said county of Ohio, feloniously, wilfully, r Viciously, deliberately, and unlawfully, did slay, kill, murder one Guenther Sehuchardt, against the peace dignity of the State."

The prisoner demurred to the indictment, and h murrer was overruled, and he thereupon pleaded not A jury was duly empanneled and sworn to try the iss on the 5th day of October, 1883, rendered a verdict o of murder in the first degree, but added thereto, as statute they lawfully might, "and we further find that the defendant be punished by confinement in the penitentiary." The prisoner moved to set aside the verdict, and for a new trial, also for arrest of judgment, which motions the court overruled and sentenced the prisoner upon the verdict of the jury to imprisonment in the penitentiary for life. To this judgment the prisoner obtained a writ of error.

W. W. Arnelt for plaintiff in error.

Attorney-General Watts for the State.

Johnson, President:

The prisoner took several bills of exceptions, which were duly signed, one to the overruling of the prisoner's challenge to the juror Mitchell, another to the overruling of the prisoner's challenge to the juror Ballard, another to the judgment of the court in overruling prisoner's motion to be permitted to open and conclude the argument, another to the refusal of the court to set aside the verdict of the jury and grant the prisoner a new trial, another to the refusal of the court to arrest the judgment, and another to the giving of instructions to the jury.

It is here earnestly insisted by counsel for prisoner that the indictment under our Bill of Rights is bad; that by it the prisoner was not "fully and plainly informed of the character and cause of the accusation against him," a right which is guaranteed to him by our Constitution, and which the counsel ot prisoner insists was violated in his being held to answer the indictment in this case. Chapter 118 of the Acts of the Legislature of 1882, amending chapter 144 of the Code, in its first section, declares: "Murder by poison, lying in wait, imprisonment, starving, or any wilful, deliberate and premeditated killing, or in the commission of, or attempt to commit arson, rape, robbery or burglary, is murder of the first degree. All other murder is murder of the second degree. In an indictment for murder and manslaughter, it shall not be necessary to set forth the manner in which, or the means, by which the death of the deceased was caused, but it shall be sufficient in every such indictment to charge, that the defendant did feloniously, wilfully, maliciously, deliberately and unlawfully slay, kill and murder the deceased.1' In the same section are forms of indictment for both murder and manslaughter. The form for an indictment for murder is copied in the indictment here. This modification of our statute was evidently taken from 14 and 15 Vict. ch. 100, sec. 4, (re-enacted in 24 and 25 Vict. ch. 100, sec. 6) which declares, that it is not necessary to set forth the manner, in which, or the means, by which the death of the deceased was caused; but it shall be sufficient in every indictment for murder to charge that the defendant did feloniously, wilfully, and of his malice aforethought kill and murder the deceased; and it shall be sufficient in eveiw indictment for manslaughter to charge "that the defendant did feloniously killjand slay the deceased." (2 Bish. Crim. Pro. sec. 523.) Thus we see that in England where originated the common law form of an indictment for murder, in which there was so much useless verbiage, it has now by act of parliament been stripped of it all. Through a long series of years the courts of England from time to time held certain words and phrases used in the indictment as unnecessary. (Bish. Crim. Pr. sec. 498, et seq.) In early times in England it was required in the indictment to state the length and depth of the wound to enable the judges, it was said, to see that it was mortal; but where a limb or the head was cut off or a ball was sent through the entire body this averment became impossible and therefore not essential. Finally in 1815 when numerous bruises and lacerations by kicks and other rough usage were charged without specifications of their several lengths and depths, the judges on examination discovered that the precedents had not been uniform, and the majority held the indictment good. They deemed, that because of precedents against the objection they might consider, whether common sense required a statement of these particulars, and as the statement, if made, need not be proved, they thought it unnecessary. And so the law seems to have been continuously" held afterwards in all cases whether of many wounds or one. (Bish. Crim. Pr. sec. 518) and cases cited.

In Notes v. The State, 24 Ala. 672, the indictment was as follows, omitting the caption: "The grand jury of said Dallas county charge that on the 14th day of February, 1853, Joseph Koles unlawfully and with malice aforethought killed George T. Sharp by shooting him with a gun, against the peace and dignity of the State of Alabama." Chilton, C. J., said: "It is contended that it is in violation of the tenth and twelfth sections of the bill of rights of this State; the first declaring that 'in all criminal prosecutions the accused has a right to be heard by himself and counsel, to demand the nature and cause of the accusation and have a copy thereof, &c and further that in all criminal prosecutions by indictment and information, the accused shall have a speedy public trial by an impartial jury of the county or district, in which the offence shall have been committed, ' &c and the twelfth section providing that 'no person shall for any indictable offence be proceeded against criminally by information.' * * * With respect to the legislative power of the State we have frequently announced that in reference to all legitimate subject-matter of legislation this power was unlimited, except in so far as it was restrained by Federal or State Constitutions. * * * The twelfth section of the bill of rights evidently inhibits the Legislature from passing any law authorizing a party to be proceeded against criminally by information for an indictable offence; but this in no wise restricts the Legislature from enacting laws defining offences and their punishment, and prescribing forms of indictments suited to them, as well as the mode of trying them. They cannot say a party may be proceeded against for an indictable offence by information that is, they have no power to say a party can be put upon his trial for an offence which is indictable, unless the...