63 W. Va. 635 | W. Va. | 1908
By this writ of error, Harrison Blair complains that he has been convicted and held for petit larceny, (1) upon an insufficient indictment, (2) upon a verdict contrary to law and the evidence, (3) by a void judgment.
The indictment charges the larceny of one man’s saddle, of the value of $7, and one horse, of the value of $15, of the goods and chattels of another. By motion to quash, which was overruled, exception is taken to the terms used in describing the propertjr as aforesaid. It is contended that they are general and not sufficiently specific. This is not tenable. The indictment sufficiently describes the property. It states with reasonable certainty what is alleged to have been stolen. Bishop, Crim., Pro., Yol. 2, section 700, says: “Assuming value and ownership to be duly ■alleged, the following expressions descriptive of the thing are severally sufficient: ‘one sheep,’ ‘a horse,’ ‘a certain mare, ’ ‘one certain hog, ’ ‘a certain yellow and white pied beef steer,’, ‘one cow’ (under which words the State may prove the animal’s color and description), ‘one watch,’ ‘one bolt of domestic, made of cotton,’ ‘a parcel of oats’ (a form not to be commended) ‘one hide,’ ‘one bull tongue’ (being the name of a ■ peculiarly shaped ploughshare), ‘one pair of buckskin gloves,’ (but not proved by evidence that they were of sheepskin), ‘six towels,’ ‘fifty pounds of Hour,’ ‘one featherbed,’ ‘a book.’” Authorities are there cited for each of the foregoing descriptions.
We are precluded from consideration of the assignment that the verdict is contrary to law and the evidence, because the evidence is not properly before us. While the testimony is printed in the record, it is not embraced in, or certified by, -a bill of exceptions according to the plainly announced
Is ihe final judgment, that of fine and imprisonment, entered upon the verdict of the jury, invalid because a note by the clerk shows that it was .entered in the chancery order book? Defendant so insists. The novel situation of a judgment of conviction in a criminal proceeding being so entered has, we confess, given us much serious concern. But, upon research and reflection, such concern appears • to arise only by reason of the almost sacred distinction so long maintained in this jurisdiction between procedure at law and in chancery. In this incident, however, a question of distinction in procedure is not involved. It must be conceded that the procedure in this criminal case was at law. Simply the final order was entered out of the accustomed place for orders of that character to be entered. Was this error? May we not well consider it mere inadvertence? Certain it is, the judgment was entered, regularly, we may say, in every way but in the wrong book. Suppose it had not been entered at all; it would be none the less a judgment, pronounced, as it evident^ was, by the court. “The rendition of a judgment is a judicial act; its entry-upon the record is. merely ministerial. A judgment is not what is entered, but
We have used the words “ wrong book. ” But in what sense was it the wrong one? Shall we say legally wrong? We find no direct authority of law for separate books in our circuit courts to be kept, in law and in chancery. True, the unwritten law, or approved custom, has so been since the organization of these courts. And not for a moment would we do aught to disturb the distinction, even by keeping separate records, between proceedings at law and in chancery so honored and approved in the Virginias. May it always be as closely observed as in the years long past. It tends to regularity, certainty, and convenience. Let it not be said of us that “an ungrateful generation hath forgotten the memories of its fathers.” But notwithstanding this honored distinction in the records, our codes since 1849 have provided simply, as our present statute does, that: ‘1 The proceedings of every court shall be entered in a book- and read in open court by the clerk of the court.” Chap. 131, section 4. When the old county courts had both law and chancery jurisdiction, it was usual to enter all orders in one book. The circuit courts have always used one for law and
In the foregoing conclusion we are sustained by the authorities generally. Says Black on Judgments, section 111: “ When the clerk is directed by law to keep certain books for the entry of judgments, or to record judgments in a book specially designated by statute for that purpose, and deviates from the course prescribed, then in either case, for reasons sufficiently stated in the preceding section, the validity of the judgment is not thereby impaired between the parties. As concerns third persons the case might be different.” In Thompson v. Bickford, 19 Minn. 17, it is held, that where, notwithstanding the adoption of a code of civil procedure in that state merging legal and equitable forms in one form of action and providing for a “judgment” only as the determination of issues, the clerk of a certain court kept two books, one labelled “judgment-book,’’the other “ decree-book,” and was accustomed to enter causes of legal cognizance in the former and equity causes in the latter, a judgment of foreclosure was not impaired by the fact that it was entered only in the “decree-book.” The error in the
Again we say that there is not; a question of distinction between procedure in the proper forum,, whether it should be at law or in chancery, involved in this case. Such was the question before this Court in the cases of Ruhl v. Ruhl, 24 W. Va. 279; State v. Irvin, 30 W. Va. 404; and Alderson v. Commissioners, 32 W. Va. 640. But no point arose in those cases as to the validity of a single law order improperly entered in the chancery order book in a case where all the proceedings, trial, and judgment were property had on the law side of the court, and all record entered there but a single order, improperly entered elsewhere. In the cases aforesaid, it was simply held that contempt proceedings
We are of opinion to affirm the judgment, directing, however, for the sake of regularity to the ancient, well recognized, and commendable practice of separate books of entry for law and chancery in the circuit courts, that the judgment heretofore entered and memorialized as aforesaid, be entered in the law order book of the court below, nunc pro tunc. ■ It will be so ordered.
Affirmed.