State v. Whitt
| Citation | 39 W.Va. 468,19 S.E. 873 |
| Parties | STATE v. WHITT. |
| Decision Date | 25 June 1894 |
| Court | Supreme Court of West Virginia |
Indictment —Sufficiency —Finding by Grand Jury.
1. An indictment which does not charge the offense to have been "feloniously" committed is not an indictment for a felony.
2. It is sufficient that the record shows that the indictment found is for either a felony or a misdemeanor, but one of these terms cannot be used interchangeably for or construed to mean the other.
3. When the record fails to show the finding of the indictment by the grand jury, the judgment will be arrested and the indictment quashed.
(Syllabus by the Court.)
Error to circuit court, Lincoln county; Thomas II. Harvey, Judge.
Hezekiah Whitt was convicted of killing a domestic animal, and brings error. Reversed.
Campbell & Holt and B. H. Oxley, for plaintiff in error.
T. S. Riley, Atty. Gen., for the State.
DENT, J. Hezekiah Whitt was at the February term, 1894, of the circuit court of Lincoln county tried, found guilty, and sentenced to two years imprisonment in the state penitentiary, upon the following indictment: etc. From such conviction the accused applied for and obtained a writ of error to this court.
The first question presented for consideration is as to whether the indictment charges a felony. The offense is not alleged as "feloniously" committed; hence, under thesettled law of this state, the indictment does not charge a felony, hut is manifestly bad for that purpose. Randall v. Com., 24 Grat 644. Not being a good Indictment for a felony, could the accused be held to answer for a misdemeanor, under the indictment and the record thereof? The only finding of the grand jury, as disclosed in the record, is an indictment for a felony. It is provided under section 1, c. 152, of the Code that "offenses are either felonies or misdemeanors." In the case of State v. Heaton, 23 W. Va. 774, it was held: "The recording of the finding of the grand jury on the record book need only describe the offense with which the accused is charged as a felony or a...
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State v. Manns
...ex rel. Vandal v. Adams, 145 W.Va. 566, 115 S.E.2d 489 (1960); State v. Smith, 130 W.Va. 183, 43 S.E.2d 802 (1947); State v. Whitt, 39 W.Va. 468, 19 S.E. 873 (1894).8 The victim's house was located near the Virginia border.9 The defendant also contends that it was error to permit this witne......
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State Of West Va. v. Justice
...sufficient allegations of a misdemeanor may be regarded as an indictment for a misdemeanor. 5.Whitt Case Overruled The case of State v. Whitt, 39 W. Va. 468, in so far as it holds an order of record in a criminal case reciting that defendant has been indicted for a felony to be a verity, is......
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State v. Justice
...between the two [the order and the indictment], and, treating the record as an absolute verity, it cannot be contradicted.' But since the Whitt case was decided this Court has receded from 'verity' rule. In Nuttallburg Smokeless Fuel Co. v. First Nat. Bank of Harrisville, 89 W.Va. 438, 109 ......
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State ex rel. Vandal v. Adams
...was done feloniously.' To the same effect is the case of Randall v. Commonwealth, 24 Grat., Va., 644, decided in 1874. In State v. Whitt, 39 W.Va. 468, 469, 19 S.E. 873, decided in 1894, the defendant was convicted of the malicious killing of an animal belonging to another. The judgment was......