The State v. Swank

• Decision Date: 30 June 1880
• Citation: 16 W.Va. 736
• Parties: The State v. Conkle alias Swank
• Court: West Virginia Supreme Court

16 W.Va. 736

The State

v.Conkle alias Swank.

Supreme Court of Appeals of West Virginia.

Decided June 30, 1880.

1. In a prosecution for felony a plea of not guilty by an attorney is a nullity; such plea must be pleaded by the defendant in person; and the record should show that fact.

2. a person indicted for felony must be personally present during the trial; and such presence must be shown by the record.

3. Where a judgment against the defendant on a verdict of guilty on an indictment for felony is reversed by the Appellate Court, because the verdict was rendered upon a plea of not guilty pleaded by the defendant by his attorney and not in person, the prisoner is not entitled to a discharge under the constitutional provision, that no person shall be twice put in jeopardy for the same offence.

4. Where a judgment agaiust the defendant on a verdict of guilty on an indictment for felony is reversed, and the verdict set aside because the plea of not guilty pleaded was pleaded by the defendant by attorney and not by the defendant in person, the cause will be remanded to the court below to be further proceeded with to final determination according to law upm the said indictment, as if no plea of not guilty had been pleaded.

5. Upon a trial on an indictment for felony the defendant may on cross examination of a witness for the state ask such witness, if he has employed counsel to aid in the prosecution against the defendant, and if such question is answered in the affirmative by the witness, it may be considered by the jury as tending to show feelings of bias in the witness against the prisoner in giving his testimony, and may be considered by the jury in connection with the credit to be given to the evidence of such witness.

The circuit court of Wood county on the 23d day of March, 1880, rendered a judgment against William Conkle alias William Swank, on an indictment for fel-ony. To this judgment a writ of error and supersedeas were allowed upon the petition of said defendant.

Hon. J. M. Jackson, judge of the fifth judicial circuit, rendered the judgment complained of.

Haymond, Judge, furnishes the following statement of the case:

At a special term of the circuit court of the county of WTood, held on the 20th day of January, 1880, the grand jury, empanelled and sworn in and for the body of said county, found and presented an indictment against William Conkle alias William Swank, for an attempt to commit felonious murder in the said county of Wood. The indictment contains three counts. The first count charges an attempt upon the part of the defendant feloniously, wilfully and of his malice aforethought to kill and murder one A. R. Ralston on the day of November, 1879, in the night time, at the said county of Wood in the manner and form and by the means in the said count mentioned and described. The second count charges the defendant with an attempt feloniously, wilfully and of his malice aforethought to kill and murder A. R. Ralston in the manner and form and by the means in that count mentioned and described, on the day of November, 1879, in the night time, at the said county of Wood. And the third count charges that the defendant on the day of November, 1879, in the night time, at the said county of Wood, did attempt in manner and form and by the means in that count mentioned and described, feloniously, wilfully and of his malice aforethought to kill and murder A. R. Ralston, J. H. Swank, Alvinda Swank and A. R. Ralston, Jr.

It further appears, that afterwards on the 23d day of January, 1880, the said court made the following entry and order in the ease, to wit: "William Conkle alias Swank, who stands indicted for felony, was this day led to the bar in custody of the jailer of this county. Thereupon the said prisoner, by his attorney, moved the court to quash the indictment, which motion being considered by the court is overruled; and thereupon the prisoner, by his attorney, for plea, says he is not guilty in manner and form, as in the indictment against him is alleged, and of this he puts himself upon the country, and the prosecuting attorney likewise, and issue thereon is joined, and for reasons appearing to the court this cause is continued until Thursday the 29th inst. Thereupon the prisoner is remanded to jail."

Afterwards, on the 29th day of January, 1880, the said court made and entered the following order, to wit: "William Conkle alias Swank, who stands indicted for felony was this day led to the bar in custody of the jailer of this county. Thereupon on motion of the defendant by his attorney this cause is continued until the 1st day of the next term." * * * * "Thereupon the prisoner is remanded to jail."

It further appears that afterwards at a circuit court held far said county on the 1st day of March, 1880, the said court made and entered the following order, to wit:" This day came as well the prosecuting attorney as the defendant by his attorney; and thereupon came a jury, to wit: Simon Fairburn, William Lowres, E. L. Gale, Jr., James D. Looney, Hamilton Yates, James T. Dunbar, S. L. Grimes, Albert Petty, J. J. Harper, George A. Drennan, Charles W. Stone and Taylor Way, good and lawful men, who being elected and drawn by ballot, as the law requires, were sworn to well and truly try, and true deliverance make between the State ot West Virginia and William Conkle alias Swank, and a true verdict render according to the evidence, and having heard the evidence in part, and there not being time to hear the whole evidence, are adjourned until to-morrow morning at nine o'clock, and the usual oath administered to A. B. Beckwith and W. T. Cook, deputies for C. H. Shattuck, sheriff of Wood county, in relation to keeping the jurors together. Thereupon the prisoner is remanded to jail."

On March 2, 1880, the said circuit court made and entered in the said case the following order, to wit: "William Conkle alias Swank, who stands indicted for felony, was this day again led to the bar in custody of the jailer of this county, and the jury impanelled and sworn in the cause on yesterday appeared in charge of the sheriff pursuant to adjournment, and having heard the conclusion of the evidence and the argument of counsel in part, and there not being time to hear the whole argument, are adjourned until to-morrow morning at nine o'clock, and the usual oath administered S. S. Hazen, W. T. Cook and A. B. Beckwith, deputies for C. H. Shattuck, sheriff of Wood county, in relation to keeping jurors together. Thereupon the prisoner is remanded to jail."

It further appears that on the 3d day of March, 1880, said circuit court made and entered an order in said case in these words, to wit: "William Conkle alias William Swank was this day again led to the bar in custody of the jailer of this county, and the jury impanelled and sworn in this cause on a former day of thi.sterm, appeared in charge of the sheriff pursuant to their adjournment, and having heard the conclusion of the argument of counsel were sent out to consider of their verdict, and after some time returned into court, and upon their oath do say: 'We the jury find the prisoner William Conkle alias William Swank guilty in manner and form as charged in the within indictment, and we ascertain the term of his confinement in the penitentiary of this State at four (4) years; and thereupon the said prisoner by his attorney moved the court to suspend judgment at this time, and judgment is accordingly so suspended. Thereupon the prisoner is remanded to jail."

It also appears that at the said circuit court, continued and held for said county on the 23d day of March, 1880, the said court made and entered the following order, to wit: "William Conkle alias William Swank, who stands convicted of felony, was this day again led to the bar in custody of the jailer of this county, and thereupon, it being demanded of the said prisoner if any thing he knew or had to say, why the court should not now proceed to pronounce judgment upon him according to law, and nothing being offered or alleged in delay of judgment, it is ordered by the court, that the said William Conkle alias William Swank, be imprisoned in the penitentiary of this State for the term of four years, the time by the jury in their verdict ascertained; and it is further ordered by the court, that the sheriff of this county do, as soon as may be, remove and safely convey the said William Conkle alias Swank from the jail of this county to the penitentiary of this State, there to be incarcerated for the period aforesaid, and in all things dealt with according to law. Memo. Be it remembered that on the trial of this cause the prisoner by his counsel tendered three bills of exceptions, marked one, two and three, to the ruling of the court during the progress of the trial, which several bills of exceptions were signed and sealed by the court and ordered to be made a part of the record in this cause. And thereupon the prisoner by his counsel stated in open court, that he desired time to make application to the Supreme Court of Appeals of this State for a writ of error to the judgment of this court pronounced in this cause, therefore it is ordered, that execution upon said judgment and sentence be suspended for sixty days. Thereupon the prisoner is remanded to jail."

Bill of exceptions marked one purports to contain all the material evidence given to the jury at the trial, which is quite voluminous. By this bill of exceptions it also appears, that after the jury had found and returned their said verdict to the court against the prisoner, and thereupon "the defendant by his counsel moved the court to set aside the verdict rendered by the jury in this cause and award a new trial, on the ground that the same is contrary to the evidence, which motion being argued by counsel for the defendant and by the pros-editing attorney the court" overruled the defendant's said motion, and refused to set aside the said verdict and grant a new trial.

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