State v. Stewart

• Decision Date: 25 February 1874
• Citation: 7 W.Va. 731
• Parties: State v. Stewart. February 25. 1874.
• Court: West Virginia Supreme Court

7 W.Va. 731

State

v. Stewart.February 25. 1874.

Supreme Court of Appeals of West Virginia.

1. If a person, charged with felony, is entitled to be examined before Term

the county court of the county wherein the offence is charged to---have been committed, it is too late after verdict of guilty and judgment thereon, against the prisoner, to claim, in the appellate court, for the first time, the right to such examination, and to claim that the judgment of the circuit court should be reversed, and the verdict of the jury set aside, upon the allegation by him, in his petition for the writ of error, that he had not been examined before the county court, upon the charge of felony in the indictment contained, and had not, by his assent, entered of record in the circuit court, dispensed with such examination.

The material facts in the ease sufficiently appear in the opinion of the Court.

The Hon. Joseph Smith, judge of said circuit court, presided at the trial below.

Attorney General 3Iathews for the State.

William A. Quarrier for the defendant.

Haymond, President:

At a regular term of the circuit court held in and for the county of Kanawha, on the 3rd day of November, 1873, an indictment was found against James Stewart, by the grand jury attending upon said court, for a felony, in this, viz: "that James Stewart, on the 10th day of October, 1873, at the county aforesaid, in and upon the body of one Moses Roy, feloniously did make an assault, and him the said Moses Roy, feloniously and maliciously did then and there cut and wound, with in- tent, him, the said Moses Roy, then there to maim, "disfigure, disable, and kill airainst the peace and dignity of the State. And also for that the said James Stewart, afterwards, to-wit: on the 10th day of October, 1873, at the county aforesaid, in and upon one Moses Roy, unlawfully did make an assault, and him, the said Moses Roy, did then and there unlawfully, but not maliciously, cut and wound, with intent, him the said Moses Roy, then and there to maim, disfigure, disable and kill, against the peace and dignity of the State." Afterwards on the 6th day of November, and at the same term of said circuit court, the said James Stewart, so indicted, was led to the bar of said circuit court, in custody of the keeper of the jail, and he plead not guilty to the indictment, and thereupon came a jury, who being duly selected and impanelled and sworn, after hearing the evidence and arguments of counsel, found the said James Stewart, guilty, as alleged in the second count of the indictment, and fixed the term of his confinement in the penitentiary at one year. And they found him not guilty upon the first count. Thereupon the defendant Stewart moved the court to set aside the verdict of the jury and award him a new trial; and afterwards on the 6th day of. November, 1873, the circuit court overruled the motion for a new trial, and rendered judgment upon the verdict of the jury, against the defendant Stewart, that he be taken, by the sheriff of the county, as soon as practicable after the rising of the court, from the county jail, thence to be removed to the penitentiary of the State, there to be kept in confinement for the period of one year. To this sentence and judgment of the circuit court, the defendant Stewart hath obtained a writ of error, from one of the judges of this Court, during vacation.

The only error assigned here is, that the circuit court erred in rendering judgment against the defendant (Stewart), without his having been previously examined by the county court of Kanawha county, upon the charges contained in the the indictment, or the fact of his hav- ng waived sueli examination not having been entered of record, in the circuit court. The record does not dis-close that the defendant at any time, before trial, objected to being tried upon the indictment, upon the ground that he had not been examined for the offense before the county court, according to the provisions of the act of the Legislature, approved April 3, 1873. He did not move to quash the indictment, or do any other act, before trial, by which the attention of the court would be directed to the fact as to whether he had been...