State v. Vineyard

Decision Date05 December 1919
Docket Number3786.
Citation101 S.E. 440,85 W.Va. 293
PartiesSTATE v. VINEYARD.
CourtWest Virginia Supreme Court

Submitted November 25, 1919.

Syllabus by the Court.

On an indictment for murder in the statutory form, the accused cannot be convicted of assault and battery, because that offense is not necessarily included in the higher offense expressly charged.

A verdict found on such an indictment, acquitting the accused of murder of both degrees and voluntary manslaughter, and then saying the jury find him guilty as charged in the indictment, except as to the charges of murder and voluntary manslaughter, "but do not decide as between the charge of involuntary manslaughter and assault and battery, as therein charged," is void for uncertainty, except as to its findings in favor of the accused.

An erroneous instruction, approved on a writ of error on which a new trial is allowed for other errors, and repeated on such new trial, may be disapproved, on reversal of the judgment and award of a new trial on a second writ of error for insufficiency of the verdict.

Capacity to commit a crime is a question to be determined by the jury from the age, appearance, and conduct of the accused, both at the time of commission of the offense charged and at the time of trial; wherefore the trial court may properly refuse to direct a verdict of acquittal, on the ground of lack of independent, direct, and express evidence of such capacity.

It is not error to refuse requests for repetition of instructions given, in altered forms.

On the award of a new trial, founded upon well-taken exceptions, an appellate court may, in its discretion, pass upon the propriety of procedure disclosed by the record, to which no sufficient exception has been taken, for the purposes of such new trial.

Additional Syllabus by Editorial Staff.

Except where a statute requires it, a verdict of guilty as charged in an indictment for an offense which necessarily includes others is sufficiently certain, and in such case it need not specify the offense or the degree, unless a statute requires it to do so; but in that case accused is deemed to have been found guilty of the crime charged, and not a lower and inclusive one, so that the verdict is certain as specifying the offense.

After a previous conviction of involuntary manslaughter, on an indictment for murder in the statutory form, accused could not be convicted in a subsequent trial on the same indictment of any offense higher than involuntary manslaughter, because of the constitutional inhibition against second jeopardy.

In trial on indictment for murder in statutory form, and where accused, after a previous conviction of involuntary manslaughter, could not be convicted in a subsequent trial of any offense higher than that, testimony of a physician describing the injury of the deceased, narrating the surgical treatment administered, and stating the time and cause of his death, was admissible; it being necessary to prove the death and its cause.

Error from Circuit Court, Roane County.

Cully Vineyard was convicted of involuntary manslaughter, his motions for new trial and in arrest of judgment were denied and he brings error. Reversed, verdict set aside, and case remanded for new trial.

Harper & Baker, of Spencer, for plaintiff in error.

E. T. England, Atty. Gen., and Charles Ritchie, Asst. Atty. Gen., for the State.

POFFENBARGER J.

On this second writ of error in the case reported in 81 W.Va. 98, 93 S.E. 1034, to a judgment rendered as upon a verdict of guilty of involuntary manslaughter, returned by the jury in the new trial awarded, the assignments of error go to the form and substance of the verdict, admission of certain evidence, the giving of an instruction at the instance of the state, refusal of instructions for the prisoner, remarks of counsel in the argument of the case, and the motion for a new trial and in arrest of judgment.

The judgment will have to be reversed for lack of a sufficient verdict on which to base it. There is a verdict of acquittal as to murder and voluntary manslaughter, but no verdict of conviction of any offense by name or in legal effect. After having acquitted the accused to the extent above indicated, the verdict proceeds as follows:

"We, the jury, do find the defendant Cully Vineyard guilty as charged in the indictment, with the above exceptions, but do not decide as between the charge of involuntary manslaughter and assault and battery, as therein charged."

In this revelation of inability to agree upon the offense of which the jury deemed the accused to be guilty, the verdict seems to be an unprecedented one. In substance and effect, it amounts to a report of disagreement or inability to agree upon a finding as to the vital issue submitted to the jury. It necessarily negatives a finding of guilt of involuntary manslaughter, which the charge made in the indictment included, and of which the accused could have been found guilty. If there could have been a conviction of assault and battery under the indictment, the terms of the verdict exclude it also. Evidently some of the jurors were unwilling to concur in a verdict of guilty of manslaughter, because they did not believe the accused had committed that offense and others were unwilling to concur in a verdict of guilty of assault and battery, because they believed him to be guilty of the higher offense. The court seems to have adopted the theory of guilt of the lower offense, because all of the jurors...

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1 cases
  • State v. Cokeley
    • United States
    • West Virginia Supreme Court
    • June 29, 1976
    ... ... Based on the ... court's examination of these instructions, we conclude that the trial court acted properly in refusing them as either repetitious, State v. Putnam, W.Va., 205 S.E.2d 815 (1974); State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966); State v. Vineyard, 85 W.Va. 293, 101 S.E. 440 (1919), or as being unsupported by evidence, State v. Bennett, W.Va., 203 S.E.2d 699 (1974); State v. Vance, 146 W.Va. 925, 124 S.E.2d 252 (1962); State v. Stonestreet, 112 W.Va. 668, 166 S.E. 378 (1932) ...         The ninth assignment of error concerns the ... ...

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