State v. Smith.

• Decision Date: 27 September 1884
• Citation: 24 W.Va. 814
• Court: West Virginia Supreme Court
• Parties: State v. Smith.

24 W.Va. 814

State

v.Smith.

Supreme Court of Appeals of West Virginia.

Submitted June 17, 1884

Decided September 27, 1884.

1. An indictment for murder in the form prescribed by section I of chapter 118 of the Acts of the Legislature of 1882 is a good and valid indictment, (p. 817.)

2. An indictment for murder may contain two or more counts, in each of which the person alleged to have been murdered may be described by a different name. (p. 817.)

3. Each of the several counts in an indictment is regarded as a separate indictment, and is supposed to present a separate and distinct offence, (p. 820.)

4. If the indictment contains different counts, which are in fact for separate and distinct offences, and this fact appears on the opening of the cause, or at any time before the jury are sworn for the trial thereof, the court may quash the same lest it may confound the prisoner in his defence, or prejudice his challenges of the jury; and in such case, if the defect is discovered after the jury are sworn and before the verdict is found the court may require the prosecutor to make his election on which charge he will proceed, (p. 818.)

5. The subject of election is addressed to the judicial discretion of the judge who presides at the trial; but if the prosecutor in any case be put to his election, he should be required to make his election before the prisoner opens to the jury his defence, (p. 820.)

6. If the different counts in an indictment for murder purporting to be for distinct and separate offences, are inserted in good faith for the purpose of meeting a single charge, the court will neither quash the indictment, nor compel the prosecutor to elect upon which count he will proceed to trial, (p. 821.)

7. The court wTill not set aside a verdict on the ground that it is contrary to the evidence, unless the evidence be plainly insufficient to warrant the verdict; and the court will only set aside a verdict as contrary to the evidence where the jury have plainly decided against the evidence, or without evidence, (p. 825.)

8. On a trial for murder the prisoner moved the court to set aside the verdict upon the ground that after the judge and the defendant had left the court-room at the noon recess, the prosecuting attorney and two other persons had a conversation in the presence, and within the possible hearing of the jury, who had not yet left their seats, in regard to the effect of certain material evidence which had been introduced on the trial, but it did not appear that any part of such conversation had been heard by any of the jury, which motion the court overruled: Held:

The circuit court did not err in overruling said motion, (p. 828.)

Woods, Judge, furnishes the following statement of the case:

At the March term, 1884, of the circuit court of Taylor county, Carter Smith was indicted for the murder of one George MeDaniel. The indictment contained two counts, in the precise form prescribed by section 1 of chapter 118 of the Acts of the Legislature of 1882. In the first count he was charged with the murder of George McDaniel, on the

day of December, 1883; in the second count he was charged

with the murder of George McDonald, on the day of

December, 1883. On the 31st of March, 1884, the defendant moved the court to quash the indictment and each count thereof, which motion was overruled. lie then moved the court to "require the prosecuting attorney to elect as to which count of the indictment the prisoner should be tried upon," which motion was also overruled. The defendant then pleaded not guilty, and the issue was tried by a jury, who on the 3d day of April, 1884, returned a verdict "finding the defendant guilty of murder in the second degree, as charged in the first count of the indictment". And thereupon the defendant moved the court to arrest the judgment upon the verdict, and to set the same aside, and grant him a new trial, on account of alleged improper conduct on the part of the prosecuting attorney, and because the same was contrary to the law and the evidence, which motions the court overruled, and the defendant excepted and filed his two bills of exceptions, "No. 1" and "No. 2." The court thereupon rendered judgment on the verdict that the defendant be imprisoned for ten years, in the penitentiary..

To this judgment the defendant obtained a writ of error.

Four grounds of error are assigned by the defendant.

1st. In refusing to quash the indictment and each count thereof.

2d. In refusing to require the State to elect upon which count the defendant should be tried.

3d. In refusing to set aside the verdict for the reasons already stated, and

4th. In refusing to arrest the judgment because the indictment was so defective that no legal conviction could be had under it.

J. W. Mason for plaintiff in error.

J. T. McGraw for the State.

Woods, Judge:

The form of indictment used in this case is in the exact words prescribed by section 1 of chapter 118 of the Acts of the Legislature of 1882, and was before this Court for consideration in the case of the State v. Guenther Schnelle, 24 W. Va., in which we held that the statute prescribing that form of indictment was constitutional, and that such indictment was valid. We have not been able to discover any reason to induce us now to reach a different conclusion But it is insisted by the defendant's counsel, that the indictment was defective because it united two different felonies in the same indictment; in the first count charging the defendant with the murder of George McDaniel, and in the second count charging him with the murder of George McDonald. The introduction ol several counts in an indictment for felony is now too well settled to be called in question. These different counts are generally intended to charge the commission ot the same offence with such varied description of the person or property, which is the subject of the offence, or of the title or ownership of the property, or of the means, instruments and agencies by which the offence was committed as will meet the various aspects in which the evidence may present itself upon the trial. In cases of burglary and larceny, the ownership of the dwrelling-house broken and entered, or of the property stolen, may be laid in different counts to be in different persons; so in an indictment for forgery, a count may properly be inserted charging the accused with uttering the forged writing as true knowing the same to be false; so also an indictment may contain a count for larceny, others for receiving stolen goods, knowing them to have been stolen, and others for aiding another to conceal stolen goods, knowing them to have been stolen. Dowdy v. Commonwealth, 9 Leigh 727; Mowbry v. Commonwealth, 11 Leigh 643; The People v. Rymlers, 12 Wend. 429. So also it has been held that an indictment for murder may contain a count charging the accused with the murder of John Moore, and also a count for the murder of a person whose surname was Moore, but whose christian name wrasto the jurors unknown; and also a third count charging the accused with the murder of an adult male person whose name was to the jurors unknown Mershon v. 2he State, 51 Ind. 14.

In all cases, however, in wrhich there are two or more counts in the indictment, whether there is actually one offence or several, each count is regarded as a separate indictment and is supposed to represent a distinct offence. Lenkori's Case, 9 Leigh 612. But I have been unable to find in Virginia or in this State any case in which more than one criminal transaction was embraced in a single indictment for felony, although in many cases where the offences are of the same character, differing only in degree, the indictments have'contained two or more counts, in which the same transaction in the form of distinct and separate felonies, are represented. But as in every such case the separate counts are regarded as separate indictments for distinct offences, it will in most cases be impossible for the court from an inspection of the indictment to determine, whether the various counts represent the same transaction under different forms, or whether they in fact represent wholly different and distinct offences. If all, or any of such counts are perfect upon their face, a demurrer to or motion to quash the indictment for the supposed misjoinder of counts must be overruled, although some of these counts may in fact represent separate and distinct offences, for the reason that this fact can only be made to appear from the evidence introduced on the trial. "It however it appear before the defendant has pleaded, or the jury are sworn, that he is to be tried for separate offences, it has been the disposition of the judges to quash the indictment lest it should confound the prisoner in his defence, or prejudice him in his challenge of the jury, for he might object to a juryman trying one of the offences, though he might have no reason to do so in the other." Young v. 'The King, 3 T. R. 106, and Dowdy v. Commonwealth, supra. And if the judge who tries the cause does not discover the defect in time to quash the indictment, he may put the prosecutor to make his election on which charge he will proceed, but if the case has gone to the length of a verdict, it is no objection in arrest of judgment. If it were, it would overturn every indictment which contains several counts. Young v. King, supra. In the case of Dowdy v. Commonwealth, supra, the defendant was indicted for the larceny of "eleven hundred and forty pounds of tobacco of the value of one hundred dollars." The indictment contained ten counts. The first was a common coaut for larceny stating the owner to be a person to the jurors unknown; the next six were for receiving stolen tobacco knowing it to have been stolen; and the last three for aiding " I. B" in concealing stolen tobacco knowing it to have been stolen. In three of the counts the property is stated as the property of " Q," in other three as the property of " G," and in the...