State v. Strayer.
| Decision Date | 06 February 1906 |
| Citation | 58 W.Va. 676 |
| Court | West Virginia Supreme Court |
| Parties | State v. Strayer. |
1. Indictment Misnomer Amendment.
If a misnomer in an indictment for a felony appear before, or in the course of, the trial thereon, the indictment may be amended by inserting therein, under an order of the court, the true name of the accused, (p. 677.)
2. Indictment Misnomer Motion to Quash.
An indictment should not be quashed because of a misnomer therein, (p. 678.)
3. Indictment Lost Indictment Substitution of Copy.
If an indictment for a felony be stolen, lost or destroyed, after a trial thereon, and the rendition of a verdict of guilty, the trial court, under its inherent common law powers, may cause to be filed in the record of the case a copy thereof, as a substitute therefor, to subserve any purpose for which the indictment maybe needed in the further progress of the case. (p. 678.)
4. Indictment Substitution of Copy Presumption.
In the absence of an objection to the substitution of such copy, on the ground that it is not a true or correct copy, its accuracy and correctness will be presumed, (p. 679.)
5. Bill of Exceptions Appeal.
A bill of exceptions, made up and signed more than thirty days after the expiration of the term of the court at which final judgment in the case was rendered, is no part of the record and cannot be considered, (p. 677.)
6. Bill of Exceptions Transcription of Evidence Record.
If it affirmatively appear, from an order in the case, that the evidence was not transcribed by the stenographer within thirty days from the end of such term, it is no part of the record, although there is a nunc pro time order, purporting to make it so as of the term at which the judgment was rendered, (p. 677.)
Error to Circuit Court, Cabell County.
Ben Strayer was convicted of murder, and brings error.
Affirmed.
R. L. Blackwood, Gordon O'Bierne and F. W. Riggs, for plaintiff in error.
C. W. May, Attorney General, for the State.
This is a writ of error to a judgment of the criminal court of Cabell county, sentencing Ben Strayer to confinement in the penitentiary of this State for life, under a conviction on an indictment for the murder of Sam Benedict.
Some of the assignments of error are predicated upon rulings of the court as to evidence. One is the overruling of a motion to set aside the verdict, as being contrary to the law and the evidence. Owing to defects in the record, it will be impossible to consider any of these assignments. There is but one paper in the record called a bill of exceptions. It purports to set out evidence in the case, but was not made up and signed either in the term at which the judgment was rendered or within thirty days after the expiration of that term. The term ended on the 20th day of February, 1905, as shown by a certificate of the clerk of the trial court. It affirmatively appears from a vacation order, entered on the 5th day of April, 1905, that the evidence in the case had not then been transcribed by the stenographer from his notes. Therefore, the bill of exceptions could not have been made up and signed at an earlier date. It was not done before the 26th of April, 1905, for that is the date of the certificate of the stenographer. On the 27th day of April, 1905, the court entered an order purporting to make this bill of exceptions a part of the record as of the last preceding term. If the bill of exceptions was inadvertently omitted, at said preceding term, as recited in this order, it did not, at that time, contain the evidence. This appears affirmatively from the vacation order. Under principles settled, in Tracy's Admx. v. Carver Coal Co., 57 W. Va. 587, it is clear that the evidence is no part of this record. See also Jordan v. Jordon, 48 W. Va 600.
It is objected that the record does not show the impaneling of any grand jury, nor the finding of any indictment against the accused. The printed record does not, but certified copies of the record do show these essential steps. Hence, these assignments avail nothing.
The indictment, as returned, appeared to be against Ben Thrayer, and was so recorded in the order showing its return. On his arraignment, the defendant moved to quash, because his true name was Ben Strayer. This motion the court overruled, and then, on motion of the State, by its attorney, permitted the indictment to be amended so as to state the true name of the clefendant. Error is predicated upon this action of the court, and Buzzards Case, 5 Grat. 694, and Drake and Cochrern's Case, 6 Grat. 665, are cited. These cases are not in point. In the former, the wrong name was inserted in the indictment and the correct name was endorsed on the back of the indictment and entered in the record. There was a variance between the record and the indictment. The record showed one man had been indicted, while the indictment showed that a different person had been charged with the offense. It was not a simple case of misnomer, and, therefore, not within the statute allowing amendment. In the other case, the indictment was against Drake and Cockren, but the clerk, in making a minute of it, accidentally omitted the name of Drake. The application was not to amend the indictment on the ground of a misnomer, but to amend the record of the court, a proceeding not authorized by the statute. Section 10 of chapter 158 of the Code of 1899 provides that no indictment shall be abated for any misnomer of the accused, and authorizes the court, in case of a misnomer appearing, before or in the course of a trial, forthwith to cause the indictment or accusation to be amended according to the fact. That is exactly what was done in this case. Hence, neither argument nor authority, other than the statute itself, is necessary to justify the action of the court in so doing.
After the verdict had been rendered and a motion for a new trial made, the indictment with the verdict written on it disappeared. This was brought to the attention of the court by the clerk after having been sworn by the court. The prisoner was present in the court and a record of the fact of the loss was made. Thereupon the court directed the attorney for the State to prepare, as nearly as possible, a true and exact copy of the indictment with the endorsement thereon. This having been done, the court inspected the copy and ascertained, to its satisfaction, that it was a true and exact copy of the original indictment together with a copy of the endorsement of the verdict thereon. Said...
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