State v. Turner

• Decision Date: 29 April 1952
• Docket Number: No. 10446,10446
• Citation: 70 S.E.2d 249,137 W.Va. 122
• Parties: STATE, v. TURNER.
• Court: West Virginia Supreme Court

Page 249

70 S.E.2d 249

137 W.Va. 122

STATE, v. TURNER.

No. 10446.

Supreme Court of Appeals of West Virginia.

Submitted April 16, 1952.

Decided April 29, 1952.

Syllabus by the Court.

1. It will be presumed that a trial court acted correctly in giving or in refusing to give instructions to the jury, unless it appears from the record in the case that the instructions given were prejudicially erroneous or that the instructions refused were correct and should have been given.

2. The word 'unlawful' is not necessary to the validity of an indictment charging a statutory offense where the wording of the indictment follows the wording of the statute, and fully and plainly informs the defendant of the nature and character of the charge.

Samuel D. Littlepage, Pt. Pleasant, Wm. S. Ryan, Spencer, for plaintiff in error.

Chauncey Browning, Atty. Gen., T. D. Kauffelt, Asst. Atty. Gen., J. G. F. Johnson, Pt. Pleasant, for defendant in error.

GIVEN, Judge.

Defendant was convicted before a jury in the Circuit Court of Mason County upon an indictment charging him with having, 'while armed with a pistol, gun and other dangerous and deadly weapons, without a license to carry the same, exposed and brandished a pistol, gun and other dangerous and deadly weapons and pointed and aimed the same at Garland Stover and other people then and there in a public place, commonly known as the Rathskeller Beer Garden, in a way and manner to cause and threaten a breach of the peace, against the peace and dignity of the State.' The court overruled defendant's motion to set aside the verdict of the jury and grant him a new trial and sentenced defendant to pay a fine of $50 and to serve sixty days in the county jail of Mason County.

Two points of error are assigned and briefed. The first relates to the action of the trial court in refusing to give unto the jury certain instructions offered by the defendant. We can not, however, consider the action of the trial court in refusing to give the instructions, for the reason that the evidence produced at the time of the trial was not included in a certificate or bill of exceptions, and is not before the Court. This Court has consistently held that it cannot consider any assignment of error, where an answer to the question posed necessarily depends upon a consideration of the evidence, and the evidence is not before the Court. In the very early case of Shepherd v. McQuilkin, 2 W.Va. 90, this Court held, Point 3, syllabus: 'It must be presumed that the court below acted correctly in refusing instructions to the jury, unless it appear by facts or testimony incorporated in the bill of exceptions, that the instructions were relevant or irrelevant to the cause.' See State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899; State v. Varner, 131 W.Va. 459, 48 S.E.2d 171; State v. Jones, 128 W.Va. 496, 37 S.E.2d 103; Bailey Lumber Co. v. Ward, 109 W.Va. 55, 152 S.E. 862.

Defendant contends that a bill of exceptions was tendered unto the trial judge and that the trial judge refused to sign the same. The record does show that a purported bill of exceptions was so presented and that the trial judge 'inspected said purported bill of exceptions and having considered the objections of the Prosecuting Attorney thereto, finds that the said Certificate of Evidence is not the record of the trial and is not the transcript of the proceedings had and taken therein and now refuses to sign said bill of exceptions as a true record of said trial. * * *'. It also appears that the defendant did not request that the evidence produced at the trial be reported. After the refusal of the trial court to sign the purported bill of exceptions no further motion or effort was made to have the bill of exceptions settled. Code, 56-6-35, requires a trial judge to sign a bill of exceptions presented to him only 'if the truth of the case be fairly stated therein * * *.' The refusal of the trial court to sign such a bill of exceptions, however, does not terminate his duties with reference thereto, for when timely requested he must settle the bill of exceptions.

The procedure prevailing in this jurisdiction with reference to the manner of preparing, settling and certifying bills of exceptions is clearly and thoroughly discussed in Ault v. O'Brien, 121 W.Va. 705, 6 S.E.2d 228. At page 709 of the West Virginia Report, at page 230 of 6 S.E.2d, the Court stated:

'Our method of practice is based upon the assumption that a trial judge will often be asked to certify a bill of exceptions containing redundant and incorrect statements. An attorney usually is partial to the contentions of his client, and in recognition of the unprejudiced position of the trial judge, he is required to 'settle' the correctness or incorrectness of statements contained in a bill of exceptions as first presented to him. * * *

'A transcript of all the evidence is not essential in this state in order to require certification of a bill of exceptions, and, in truth, a transcript of evidence dealing with uncontroverted facts should not be included in a bill of exceptions, but a statement of fact should be briefly made. The likely expenditure should be considered. Since the enactment of Code, 56-6-35, evidence which involves controverted facts may be included. This may be done in narrative form if attorneys on both sides are satisfied with the narrative statement. Otherwise, in a case reported by the court reporter, a transcript of the evidence touching...