13 W. Va. 852 | W. Va. | 1878
delivered the opinion of the Court:
On the 26th day of October, 1876, the grand jury, in and for the body of the county of Ritchie, in attendance upon the circuit court of said county, then in session, upon their oaths found an indictment; and the entry on the record of the finding of the indictment is as follows, viz : “ An indictment against B. S. Compton for trespass.
It appears that on the 23d day of October, 1877, the defendants, by their attorney, moved the court to quash the indictment in the cause, upon the ground that there is no record of the finding of the same; and the court sustained the motion to quash, as to all the defendants, except the defendant Compton, and as to him overruled the said motion; whereupon said B. 8. Compton, by his attorney, moved the court to quash said indictment, as to him. for errors apjiearing on the face of the. indictment, and on the ground that there is no record of the finding of said indictment as to him, which motion the court also overruled; and thereupon lie, said Compton, pleaded not guilty to the said indictment; and issue was thereon duly joined.
Thereupon came a jury, all good and lawful men; who being duly elected by ballot, tried and duly sworn the truth to speak upon the issue joined; and after hearing the evidence, &c., returned into court, and upon their oaths said : “We, the jury, find the defendant, B. S. Compton, guilty, as charged in the within indictment, and assess his fine at $10.00.”
Afterwards, on the 26th day of October, 1877, the court made and entered this order in the cause, viz: “This day came again the attorney for the State and the defendant, by his attorney; and the motion, tendered by the defendant in this cause on a former day of this term, to set aside the verdict of the jury in this cause, rendered on a former day of this term, being considered by the court is overruled. It is therefore considered by the court, that the State recover of the defendant $10.00
No bill of exceptions is filed in the case; nor is tbe evidence, or facts proved, certified.
To the said final judgment, rendered in the case by tbe said circuit court, the defendant, JB. S. Compton, upon his petition and assignment of errors therein, obtained from this court a writ of error; and it is for this court now to consider and determine, upon reviewing the case, whether said judgment should be reversed or affirmed.
The errors, assigned and relied upon by the plaintiff in error, are as follows, viz : 1st. The court erred in not quashing tbe indictment as to B. S. Compton, because there was no- indictment of record as to him individually. 2d. The court erred in quashing the indictment as to part of the said defendants and not quashing it as to all, because,' if it was quashed as to one or more of the same defendants, it quashes it as to all. 3d. There is no offense charged in the indictment against B. F. Compton individually; but the indictment charges, that Benjamin S. Compton and the others named therein committed an offense, the character of which, as petitioner claims, is not set out.
vis to the first error assigned.
In Drake and Cochren’s case, 6 Gratt. 665, the grand jury found an indictment against C and D; but the clerk in making a minute of the finding accidentally omitted the name of D and it was held, accor’dingto the syllabus: “1st. That the record cannot be amended at a subsequent term of the court by inserting the name of D in the minutes ; and the indictment against D must bo quashed. 2d. The minute stating that the indictment is found against C., that is a sufficient record of the finding against C.”
The court in its opinion, delivered by Judge Smith, says: “The court decides : 1st. That the court ought not to permit the amendment of the record, by. inserting the
The offense, charged in the indictment in the case at bar against the several persons therein charged, is one for which, if there had been a record of the finding of the indictment as to all the persons therein charged, a part of them on trial before a jury might have been found guilty, and a part, not guilty. Indeed one of the parties indicted might have been found guilty, and all the others found not guilty. The case in 6 Grattan clearly determines, that, although the indictment is against two persons jointly, and the record of the finding of the indictment only shows the finding as to one person, the entry is sufficient to show, that the indictment was found against such one person.
Upon the authority of said case, in 6th Grattan the entry upon the record is sufficient to show, that the indictment wasj'Tound against Benjamin S. Compton, if the entry upon the record of the finding against “B. S. Compton” is sufficient to identify the indictment against “Benjamin S. Compton.” The entry upon the record of the finding against “B. S. Compton” is manifestly an abreviation of the name of Benjamin S. Compton, by giving the initials of his Christian name, and is at least prima fade sufficient to identify the indictment, found against Benjamin S. Compton, as being the same entered upon the record, as being found against B. S. Compton. In other words B.S. Compton and Benjamin S. Compton may in such case be prima fade taken to be one and the same person for the purposes of the case. No authorities to the contrary of this view have been cited.
I apprehend, that it is only necessary, that the entry
The first error assigned is therefore not well taken' and is overruled.
As to the second assignment of error.
No defect is pointed out in the indictment itself; and I see none. The indictment on its face seems to be good and sufficient. The quashing of the indictment, as to all the defendants therein named except the said Compton, because there was no record of the finding of the indictment as to them, and overruling the motion to quash as to said Compton, did not have the effect of quashing it as to the defendant Compton. I have examined the cases of Lambert v. People, 7 Cow. 166, and People v. Eckford, 7 Cow. 535; and these cases do not sustain the proposition of the counsel of the plaintiff in error.
In these cases it was held, that, the indictments were substantially defective on their face, in not showing a criminal offense; and the court, in the case last cited, stated substantially, that for this reason the indictment would b'e quashed, not only as to the defendants then applying, but as to all the defendants ; and there was no need of a motion by any of the other defendants.
I have also examined the case of the State v. Smith, reported in 1st Murphey, N. C. (Supreme Court Reports) p. 213, and find therein nothing'having any bearing on the point under consideration. The quashing of the indictment as to all the defendants therein except the defendant Compton, and overruling the motion to quash as to said Compton, was equivalent to dismissing the indictment as to all the defendants therein named, except said Compton, and the retaining of the indictment against Compton in court for trial.
As to the third assignment of error.
This assignment oi error is overruled for the reasons assigned in considering the first and second assignments of error. No other errors have .been assinged in this case; and I see no error therein.
For the foregoing reasons the judgment of the circuit court of the county of Ritchie, rendered in this cause on the 26th day of October, 1877, must be affirmed, with costs to the State.
JUDGMENT AFFIRMED.
