State v. Taylor.
| Citation | 57 W.Va. 228 |
| Court | Supreme Court of West Virginia |
| Decision Date | 21 February 1905 |
| Parties | State v. Taylor. |
1, Criminal Law Pleas Discretion in Court.
In a criminal case, the defendant waives his right to plead any matter in abatement by pleading in bar, but the court has discretion to allow the plea in bar to be withdrawn and the dilatory plea entered, (p. 281.)
2. Criminal Law Plea in Abatement.
If, in such case, the plea of not guilty is withdrawn by leave of the court, the plea in abatement must be received, if sufficient.
3. Criminal Law Plea in Abatement Certainty.
A plea in abatement in a criminal case must be certain to every intent, (p. 233.)
4. Criminal Law Plea.
If the irregularity, relied upon as matter of abatement, relate to the constitution or organization of the grand jury, the plea must show in what the irregularity consists, otherwise it will be lacking in the element of certainty, (p. 233.)
5. Criminal Law Plea in Abatement, Insufficient.
A plea in abatement, charging generally that no writ of venire facias was issued and served within the time, and in the manner prescribed by the statute, (referring to them,) and that the body of men who had professed to be the grand jury which had found the indictment did not constitute a legal grand jury, is insufficient, (p. 233.)
(Grand Jury Statutory Requirements for Summoning Directory.
The statutory requirements, respecting the time of issuing writs of venire faeias for grand juries and the summoning of grand jurors, are directory, and substantial compliance therewith is sufficient, (p. 233.)
7. Criminal Law Argument of CounselError.
Comment by an attorney for the state in his argument in a felony case, upon the failure of the accused, who has testified in the case, to have his wife testify and corroborate statements of his own as to matters, said by him to be known to her, is improper; and, if objected to at the time, the refusal of the court to prohibit it and direct the jury to disregard it, is reversible error, (p. 234.)
8. Criminal Law Witness, Failure to Have Sworn Error,
If, after verdict, it is shown to the court, upon a motion for a new trial, that a witness for the state had testified, without having been sworn, and that the prisoner and his counsel had had no knowledge of such irregularity until after the verdict was rendered, a new trial must be allowed, although the error was purely inadvertent and accidental, (p. 236.) Criminal Law Instruction to Jury.
An instruction, containing the clause: "The oath of a juror imposes on him no obligation where none would exist, if no oath had been administered," should be refused, though the giving of il might not be reversible error, (p. 239.)
Criminal Law Instructions.
Instructions should be complete in themselves as far as they go, and not adopt others by mere reference, (p. 239.)
Criminal Law Self Defense Instructions.
When self-defense is relied upon in a case in which the evidence tends to show that the accused had provoked the combat or difficulty in which the killing was done, it is error to instruct the jury that he cannot justify his act, if he began, or brought on, the difficulty, without any intent to kill or do bodily injury. The provocation or act which induces the affray must be wrongful, not merely innocent and accidental, to bar the right of self-defense. (p. 240.)
Criminal Law Instructions Manslaughter.
The following instruction is erroneous, because it excludes a verdict of manslaughter: "If the jury believe from the evidence, that at the time of the alleged killing, the defendant and the deceased met, and upon sudden cause of quarrel arising between them, mutually agreed to engage in a personal combat, and did so engage in such combat, and if the jury further believe from the evidence, beyond a reasonable doubt, that during such quarrel the defendant, without the knowledge of the deceased, made use of a deadly weapon, in such a manner as would be likely to cause the death of the deceased, and did so cause it, then the defendant was guilty of murder; and if the jury further believe, from the evidence, that the defendant so used the said deadly weapon, deliberately and with malice aforethought, and with intent to take the life of the deceased, or to do him great bodily harm, then such killing would be murder in the first degree." (p. 240.)
Criminal Law Instructions Trial Court.
When the state of the evidence in a criminal case tends to prove facts, from which presumptions of guilt arise, under rules of evidence, established by a long and uniform course of judicial determination, the trial court may properly bring them to the attention of the jury by instructions, aptly and correctly stating them. (p. 242.)
Instructions.
Such instructions, if properly framed, neither assume the existence of the facts, from which the presumptions arise, nor interfere with the province of the jury as to the weight of the evidence, (p. 244.)
15. Criminal Law Instructions Intention Presumed from Acts.
It is improper for the court to instruct the jury that "The law is that a man shall be taken to intend that which he does, or which is the necessary consequence of his acts." Such intention is presumed, but not imputed absolutely, (p. 244.)
16. Criminal Law Jury to Apply Laic as Given.
In the trial of criminal cases, the jury should apply the law as given by the court, whether it be for or against the prisoner, (p. 242.)
17. Criminal Law Witness Error.
It is not error to permit a witness for the state to explain the meaning and intent of a statement made by him, which has been brought into the case by the prisoner, (p, 245.)
18. Criminal Law Leading Questions Depositions.
The trial court may properly exclude questions and answers in a deposition, when the questions, although containing the phrase "whether or not," are leading and suggestive of the answers desired and relate to facts of vital importance in the case. (p. 245.)
Error to Circuit Court., Upshur County.
Okey Taylor was convicted of murder and brings error.
Reversed.
R. G. Linn, R. F. Kidd, Hamilton & Morris, Talbott & O'Brien, for plaintiff in error.
Romeo H. Freer, Attorney General, and W. G. Bennett, for defendant in error.
poffenbarger, judge:
Okey Taylor, convicted of murder, in the circuit court of Upshur county, and sentenced to imprisonment in the penitentiary for a period of fifteen years, complains of the judgment, assigning numerous errors.
One is based upon the action of the court in rejecting a plea in abatement, setting up irregularity in the organization of the grand jury which found the indictment against him. Before this plea was tendered, the indictment had been found in Gilmer county on the 2nd day of October, 1903. On the following day, the prisoner had entered his plea of not guilty. On the 23rd day of January, 1904, he had filed his petition for a change of venue and obtained such change to Upshur county, by an order entered on the 29th day of January, 1904. On the 14th day of March, 1904, in the circuit court of Up- shur county, the prisoner, upon leave granted, withdrew his plea of not guilty and tendered the plea in abatement, and the court, upon objection, refused to permit it to be filed, and thereupon the prisoner re-entered the plea of not guilty.
I think the plea came too late and was properly refused for that reason, but my associates are of a different opinion. They do think that, after the plea in bar had been entered, the court had discretion to refuse to allow it to be withdrawn and the plea in abatement entered, but they think that, as the court permitted the former to be withdrawn, it had not discretion thereafter to refuse to entertain the latter. All agree to the general proposition that the right to plead in abatement is waived by pleading in bar, and that, thereafter, it is in the discretion of the court to allow, or not to allow, the benefit of such plea. This Court so decided in State v. Pine, 56 W. Va. 1, (48 S. E. 206.) The courts and textwriters, in declaring the rule, generally say the court has discretion to allow the plea of not guilty to be withdrawn and the plea in abatement to be entered. 12 Cyc. 357; Com. v. Scott, 10 Grat. 749; I Bish. Cr. PL 756. The enunciation of the principle has been made for the most part in cases in which leave to withdraw has been refused. Hence, the form of expression adopted lias naturally suggested itself, and should not be taken as an accurate indication of the principle upon which the courts have acted. The withdrawal of the plea in bar, and the tiling of the plea in abatement, wTere necessary to the accomplishment of what the prisoner attempted to do. Both were in the discretion of the court and it permitted the one and refused to Permit the other. The whole transaction is covered by one order and I do not think the court, by allowing the withdrawal of the plea in bar, surrendered its discretion as to the other plea. Technically, there was no defense after the plea in bar had been withdrawn. The record discloses, nevertheless, that a defense on the merits had been interposed, and the change of venue obtained, before the dilatory plea was tendered, and these facts apparent on the record justified the action of the court. The general rule is that such defenses must be interposed at the first opportunity. In some states, the plea now under consideration must be tendered at the term at which an appear- ance to the indictment is made. State v. Swafford, 1 Lea (Term.)'274; State v. Myer, 10 Lea (Tenn.) 717; v. Watson, 86 N. C. 624; State v. Baldwin, 80 N. C. 390; v. < > Ws, 88 N. C. 671; State v. Seahorn, 4 Dev. (N. C.) 305. The North Carolina court, however, holds that it is in the discretion of the trial court to allow a plea in abatement after the plea in bar. The case of Brannig v. People, 3 Utah 488, asserts the contrary of the position taken by me, holdthat, after demurrer entered and withdrawn, a plea in abatement should be admitted. In that...
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