delivered the opinion of the Court:
The errors specially assigned by the plaintiff in error in his said petition are as follows: “1st. It was error in the court to overrule the motion of your petitioner to set aside the verdict returned by the jury and award him a new trial, on the ground that the same is contrary to the evidence, and also on the ground that said verdict is not sustained by the evidence. 2d. The court erred in its several rulings asset forth in bills of exceptions numbers two and three. And the plaintiff in error in his said petition prays, that for these and other errors manifest
At the hearing of this case before us the Attorney General appeared personally and also filed a brief in the cause. The Attorney General orally and in his brief called the attention of this Court to the fact, that it appears by the record that the plea of not guilty pleaded to the indictment was not pleaded by the defendant to the indictment in person, but by his attorney, and that under the law this is manifest error, and that he does not deem it to be a part of his duty to press a case, when he feels that there is manifest error in the judgment, especially as this error fairly arises upon the record and must be considered by the court. I concur with the Attorney General in his view that where there is manifest material error in the judgment of the court below, fairly arising upon the record, and he is satisfied of that fact upon legal authority, his duty as the representative of the State before this Court does not require, that he shall endeavor falsely and against his conscience and judgment of the law lo seek to procure this Court to affirm such judgment in which there is such manifest material error; and especially is this so in cases of felony. The Attorney General, as the foundation or grounds of his opinion and conviction of the law touching said error, has with commendable fairness as well as justification of his course in the premises cited the court to 9 Leigh 623; 1 Chitty Criminal Law 414; 1 Wend. (N. Y.) 91; 3 Robinson’s (old) Practice 267 ; 13 Gratt. 763; 14 Graft. 713, and submitted the case thereon to the determination of this Court.
Notwithstanding the views of the Attorney General, above stated, it is proper for this court to consult the authorities bearing upon the subject and consider and determine for itself, as to whether the fact, that the plea of not guilty was not pleaded by the defendant in person but by attorney, is an error, for which the judgment of the court below should be reversed under the law by this Court.
In this case Judge Lomax delivered the opinion and judgment of the court, to which it does not appear there was any dissenting opinion. In the said opinion Judge Lomax at pages 624, 625 and 626, says that “ the well established practice in England and in this State is, that a prisoner accused of felony must be arraigned in person, and must plead in person; and in all the subsequent proceedings'it is required that he shall appear in person. This practice is stated in 1 Chit. Grim. Law, 411, 414. It is there laid down, that the accused in capital felonies cannot be found guilty in his absence ; that it is necessary that he should personally attend; and that the fact of such attendance should appear on the record. The rules applicable in England to trials for capital felonies are believed, in the general, to be equally applicable in this State to all felonies punishable by confinement in the penitentiary. In looking into the English forms of entries it will be found that the appearance of the accused is carefully stated upon the record to have been in his proper person; 4 Chitt. Cr. Law, 268. The principles on which this practice is founded are supposed to be too obvious to need explanation or illustration. In this record it is stated, that on the 29th of September, 1837, the accused was led to the bar in custody of the keeper of the jail, and thereupon was arraigned, and pleaded; and on his motion the cause was continued till the first day of' the next term ; and thereupon he was remanded to jail. And afterwards, at a circuit court, &c., held on the 27th of April, 1838, came as well the attorney for the commonwealth, as the prisoner by his attorney, and thereupon came a jury, &c. The jury not agreeing upon their verdict on that day were adjourned over until the next day; and afterwards, on Saturday, the 28th of April, 1838, the record proceeds to state that the venire empaneled upon the trial of this cause on yesterday again this day appeared in court, and retired to consider
In the case of Hocker v. The Commonwealth, 13 Gratt. 763, it was held according to the second paragraph of the syllabus, that “A verdict having been found against a prisoner, he moves the court to set it aside as contrary to evidence; which motion on another day is overruled. On the day when the motion is made, and also when it is overruled, the record states that the prisoner appeared by attorney; and there is nothing in the record to show that he was present. This is error.” In this case Judge Sammuels in delivering the unanimous opinion of the court at page 766, says: “The record, made up as it now stands, shows that on the 24th of April, when a motion was made to set aside the verdict of the jury, and again on the 26th of April, when the motion was overruled and judgment rendered, the plaintiff appeared by attor
In the case of Pifer v. The Commonwealth, 14 Gratt. 710, at page seven hundred and thirteen, Judge Allen in delivering the unanimous opinion of the court says: “In misdemeanors the personal presence of the defendant is not necessary at the trial; a verdict and judgment tor the fine may be found and rendered in his absence; and after the term he can neither move for a new trial nor in arrest of judgment. But until final judgment he may so move. In England in cases of misdemeanor the jury merely passed upon the fact of guilt; the amount of the fine against him was fixed by judgment of the court.”
In the case of the Queen v. Templeman, 1 Salk. 55, it was helS, that defendants may submit to a fine, though absent, if they have a clerk in court that will undertake for the fine. But when a man is to receive any corporal punishment, judgment cannot be given in his absence ; and the reason given is, that there is a capias pro fine, but no process to take a man and put him on a pillory. Duke’s Case, Id. 400, is to the same effect.
In Rex v. Hann & Price, 3 Burr 1786, the defendants had confessed themselves guilty of a misdemeanor, and on the undertaking of their clerk in court to answer for their fines, it was agreed by court and counsel, that such motion was subject to the discretion of the court either to grant or to refuse it, when it was clear and certain
In the case of The People v. Perkins, 1 Wend. 91. it was held substantially, that a prisoner tried for felony must be present on the taking of the verdict.
In the case of Younger v. The State, 2 W. Va. 579, it was held according to the syllabus : “First — A person indicted for a felony must be personally present during the trial therefor, and the record can alone be looked to for the evidence to prove such presence at every stage of the trial. Third — A prisoner indicted for felony should be present in court, and when arraigned, should plead in person, and the record should show that fact. Fifth— Where a judgment on a. verdict of guilty on an indict
Bishop on Criminal Law, § 268, vol. 1, says: “And as a general proposition the defendant must present himself at the arraignment and plead personally to the indictment; he cannot do it by attorney. The exception is, that for special cause shown, and as a favor to the-defendant, he will be permitted to plead by attorney in the case of a misdemeanor punishable only by fine, and not by imprisonment; and in such a case the court may permit the trial to go on in his absence.” Again at section two hundred and seventy-three the same author says : “But subject to the exception thus stated in ihe Ohio ■case, if indeed this Ohio doctrine is to be received elsewhere, the rule is very broad, that in ease of felony or treason the prisoner must be present during the whole trial, including the giving in of evidence and the rendition of the verdict, else no valid judgment can be pronounced on the verdict.” See also cases cited in note three to said section. See also The State v. Strauder, 8 W. Va. 686, 690, 691.
The thirty-eighth section of chapter one hundred and sixty-nine, (page six hundred and nine) of the Code of Virginia of 1819 provided that “whensoever, in treason or felony, or other offence punishable by confinement in the public jail and penitentiary-house, any person shall stand mute on his arraignment, or persists, after being admonished by the court, in not answering directly to the indictment, or shall be out-lawed, he'shall be considered as convicted, and the same judgment, execution and disabilities shall take place and be awarded, as if he had been convicted by verdict or confession of the crime.” The second section of chapter twenty-one of the acts of the Legislature of Virginia of 1847-8, page one hundred -and forty-eight provides, that “No person indicted for a felony shall be tried therefor, unless personally present
The second section of chapter one hundred and fifty nine of the Code of this State of 1868, is as follows, to wit: “2. A person indicted for felony shall be personally present during the trial therefor. If he refuse to plead or answer, and do not confess his guilt, the court shall have the plea of not guilty entered and the trial shall proceed, as if the accused had put in that plea, and judgment upon the verdict in any such trial be entered up as in cases of misdemeanor. The formal arraignment of the prisoner, the proclamation by the sheriff, and the charge of the clerk to the jury, as heretofore practiced, shall hereafter be dispensed with.” This section dispenses with the formal arraignment, &c., of the prisoner, as theretofore practiced, but does not dispense with the requirement, that the defendant shall appear and plead in person.
In the fifth edition of Wharton’s American Criminal Law, volume one, page five hundred and thirty and section five hundred and thirty it is laid down as law, that “ A plea by an attorney of a party fora felonious assault, committed with an intent to rob, is a nullity; the defendant must plead in person. It is otherwise, however in misdemeanors.” And the case of McQuillen v. State
The entry in the case at bar, as appears by the record is, that on the 23d day of January, 1880, “William Conkle, alias Swank, who stands indicted for felony, was this day led to the bar in custody of the jailer of this county, and thereupon the said prisoner by his attorney moved the court to quash the indictment, which motion being considered by the court is overruled, a,nd 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,” &c. According to the authorities I have cited and the law, as I understand it to be in this State, in cases of indictments for felony the defendant must plead in person, except where he refuses to plead or answer, and does not confess his guilt, in which case the court directs the plea of not guilty to be entered. The plea in the case at bar being by attorney was a nullity, and it must be considered by this court that the prisoner (the defendant) was tried by the jury without a plea of not guilty having been entered in the cause. For this reason the verdict of the jury cannot be permitted to stand; and the judgment- of the said circuit court is erroneous and must be reversed.
It seems there are other pleas that a prisoner may make to an indictment for felony besides the plea of not guilty, such as plea in abatement thereof for certain
No objection has been made before us by the counsel for the prisoner to the sufficiency of the indictment in this cause, or to either count thereof. 1 have examined the indictment and considered it, and I am of opinion, that the indictment and each count thereof are good and sufficient upon their face, and that there is no valid objection thereto, and that the court did not err in overruling the motion to quash. There may perhaps be some question as to whether the motion to quash the indictment should not have appeared upon the'record to have been made by the prisoner in person instead of by his attorney ; but as it sufficiently appears by the record that the prisoner was in court, when said motion was made by his attorney, and being of opinion that the indictment and each count thereof is good and sufficient in law asan indictment for the felony therein charged I deem it unnecessary now to decide that question. But I will here say, that it is best and safest generally, that such motions should appear by the record to have been made by the prisoner in person, and not by an attorney. In the case of Younger, Jr. v. The State, 2 W. Va. 579, a motion to quash the indictment was made by the defendant by attorney, and no notice or criticism is taken or made by the Appellate Court in relation thereto. Perhaps the court may have considered such motion good. See the case. Where it appears that a motion was made by the “prisoner or defendant” in a case of felony without the words “by his attorney” or words of like import, it will be taken that the prisoner was personally present and made the motion in person. State v. Strauder, 8 W. Va. 686 and 690. But it is more technical and appropriate for the record to show that the “ prisoner or the defendant in his proper person moved the court to quash, &c., or the prisoner in his proper person sayeth he is not guilty,” &c.
It sufficiently appears that the prisoner was present in
The record in Sperry’s Case in 9 Leigh 620 shows, that on the 27th day of April, 1838, “came as well the attorney for tbe commonwealth as the prisoner by his attorney, and thereupon came a jury,” &c., but according to the statement of Judge Lomax in his opinion, there was no such circumstance as that “thereupon the prisoner is remanded to jail,” &c., or the like stated or shown in the order or proceedings of that day. In the language of Judge Lomax, “the only statement in regard to the appearance of the prisoner on that day is, that he appeared by his attorney, without any circumstance stated from which it can necessarily be inferred that he was personally present. And appearance by attorney cannot imply that the prisoner was personally present in court, and therefore the record is deficient in what the law regards as essential to be stated in such case.” But in Sperry’s Gase the record of the proceedings of the court, as made and entered on the 28th day of April, 1838, states, that “the venire impanelled upon the trial of this cause on yesterday again appeared in court, and retired to consider of their verdict, and after some time returned
The record in the Sperry case, as well as the record in the case at bar, certainly states sufficient to necessarily authorize and require the inference that the prisoner was personally before the court on the day in question in each case. The prisoner could not have been remanded to jail, unless he was personally present before the court. On the day before the prisoner had been regularly remanded to jail, and it seems to me that it is fair to infer from the r’eeord, that he was brought into court from the jail on the 1st of March by an officer before he was remanded to jail on that day to be personally present before the court during the proceedings of the court in his cause on that day. No other inference, it seems to me, can be drawn from the record. But does the record sufficiently show, that he was personally present before the
As to the matters arising upon the prisoner’s second bill of exceptions.
We have seen the contents of this bill of exceptions as I have hereinbefore given them. In the 13th ed. of Mr. Greenleaf’s work on Evidence, vol. 1, §450, p. 506, he says: “ So also it has been held not irrellevant to the guilt or innocence of one charged with a crime, to enquire of the witness for the prosecution, in cross-examination, whether he has not expressed feelings of hostility towards the prisoner. The like enquiry may be made in a civil action, and if the witness denies the fact, he may be contradicted by other witnesses. So also in assumpsit upon a promissory note, the execution of which was disputed, it was held material to the issue, to en-quire of the subscribing witness, she being a servant of the plaintiff, whether she was not his kept mistress.” See also notes two and three to same section, and section four hundred and fifty-eight and notes one and- two thereto.
The same author in section four hundred and fifty-one also says: “ In regard to the privilege of witnesses, in not being compelled to answer, the cases are distinguishable into several classes. First. When it reasonably appears that the answer will have a tendnecy to expose the witness to a penal liability, or any kind of punishment, or a criminal charge. Here the authorities are exceedingly clear, that the witness is not bound to answer; and he may claim the protection at any stage of the enquiry, whether he has already answered the question in part, or not at all. If the fact, to which heis interrogated,furnishes but one link in the chain of testimony, which is to convict him, he is protected. And whether it may tend to criminate or expose the witness is a point upon which the court is bound to instruct him, and which the court will determine under all the circumstances of the case;
In section four hundred and fifty-four the same author says: “Where the answer, though it will not expose the witness to any criminal prosecution or penalty, or to any forfeiture of estate,'yet has a direct tendency to degrade his character. On this point there has been a great diversity of opinion, and the law still remains not perfectly settled by authorities. But the conflict of opinion may be somewhat reconciled by a distinction, which has been very properly taken, between cases where the testimony is relevant and material to the issue and cases where the question is not strictly relevant, and is asked only under the latitude allowed in cross-examination. In the former case there seems great absurdity in excluding the testimony of a witness, merely because it will tend to degrade himself, where others have a direct interest in that testimony, and it is material to the establishment of their rights of property, of liberty, or even of life, or to the cause of public justice. Upon such a rule, one who had been convicted and punished for an offence, when called as a witness against an aceomplice,
The same author in section four hundred and fifty-five says: “ But where the question is not material to the issue, but is collateral and irrelevant, being asked under the license allowed in cross-examination, it stands on another ground. In general, as we have already seen, the rule is, that upon cross-examination, to try the credit of a witness, only general questions can be put; and he cannot be asked as to any collateral and independent fact merely -with a view to contradict him afterwards by calling another witness. The danger of such a practice, it is said, is obvious, besides the inconvenience of trying as many collateral issues as one of the parties might choose to introduce, and which the other could not be prepared to meet. Whenever therefore the question put to the witness is plainly of this character, it is easy to perceive that it falls under this rule and should be excluded. But the difficulty lies in determining with precision, the materiality and relevancy of the question, when it goes to the character of the witness. There is certainly great force in the argument, that where a man’s liberty, or his life, depends upon (he testimony of another, it is of infinite importance, that those who are to decide upon that testimony should know, to the greatest extent, how far the witness is to be trusted. They cannot look into his breast to see what passes there; but must form their opinion on the collateral indications of his good faith and sincerity. Whatever, therefore, may materially assist them in this enquiry is most essential to the investigation of truth ; and it cannot but be material for the jury to understand the character of the witness, whom
The same author iu section 456 says: “ It is however generally conceded, that when the answer, which the witness may give, will not directly and certainly show his infamy, but will only tend to disgrace him, he may be compelled to answer. Such is the rule iu equity, as held by Lord Eldon ; and its principle applies with equal force at common law ; and accordingly it has been recognized in the common law courts. In.questions involving a criminal offence the rule, as we have seen, is different; the witness being permitted to judge for the most part for himself and to refuse to answer, whenever it would tend to subject him to a criminal punishment or forfeiture. * * * Nor does there seem to be any good reason, why a witness should be privileged from answering a question touching his present situation, employment and associates, if they are of his own choice; as, for example, in what house or family he resides, what is his ordinary occupation, and whether he is intimately acquainted and conversant with certain persons, and the like; for however they may disgrace him, his position is one of his own selection.”
In section four hundred and fifty-eight the same author says: “There is another class of questions, which do not seem to come within the reasons already stated in favor of permitting this extent of cross-examination ; namely, questions, the answers to which, though they may disgrace the witness in other respects, yet will not affect the credit due to his testimony. For it is to be remembered, that the object, of indulging parties in this latitude of enquiry is, that the jury may understand the
In section four hundred and fifty-nine the same author says, “but where the question does not fall within either of the classes mentioned in the three preceding sections, and goes clearly to the credit of the witness for veracity, it is not easy to perceive why he should be privileged from answering, notwithstanding it may disgrace him. The examination being governed and kept within bounds by the discretion of the judge, all enquiries into transactions of remote date will of course be suppressed ; for the in
In section four hundred and sixty, the same author says: “Though there may be cases, in which a witness is not bound to answer a question which goes directly to disgrace him, yet the question may be ashed, whenever the
In making the citations from Mr. Greenleaf which I have I do not affirm all the propositions and assertions made by him therein as being law ; but many of them evidently are ; and all of them are entitled to respectful consideration in the consideration and determination thereof. I have quoted from Mr. Greenleaf largely to show herein the views of a highly respected American author upon evidence.
Bill of exceptions number one referred to in said bill of exceptions number two shows among other things, that the witness, A. R. Ralston, who is one of the persons mentioned in the indictment, was the owner of the house in the’indictment mentioned; that the said Rals-ton, who was introduced and examined as a witness by the State, in speaking of the house fired into and the night it was fired into on cross-examination stated among other things, that on thát night he slept in the room below the one penetrated by the ball; that there was no person sleeping in the room disturbed that night; that the house has four rooms ; that Mrs. Conkle and his little son were in the east end of the house on the ground floor, on the same floor that he (witness) occupied; and John Swank was upstairs; that there was a door between his (witness’s) room and that room; that John Swank occupied the room on the upper floor on the south side of the house. Rrom this I understand, that on the night the said house was fired into the witness (Ralston) slept in one of the two rooms on the lower floor of the house, and Mrs. Conkle, the wife of the prisoner, and his little son slept in the other room on the said lower floor, and that there was a door between the said room, in which the witness slept, and that in which said Mrs. Conkle and his little son slept. The evidence of A. R. Ralston at the trial, as certified in said bill of exceptions number one, also among other things on cross-examina- ’ tion by the prisoner, tends to prove that said Mrs.
Upon consideration of the authorities I have cited it seems to me, that under tire circumstances now appearing and the form in which said question was put, which the court rejected and ruled out, as shown by said bill of exceptions number two, the court did not err in rejecting and ruling out the said questions.
As this cause must be remanded to said circuit court for further proceedings, I deem it improper for this court to express any opinion now as to whether the verdict of the jury was authorized by the evidence before them. Ho opinion is therefore expressed upon the said first assignment, of error.
This court will not now by express words order a new trial by jury to be had, because under the view taken by this court the cause was erroneously and imperfectly tried by a jury, before it wasproperly and legally ready for a trial by jury and cannot be tried by a jury legally,
For the foregoing reasons there is error in the said judgment of the circuit court of the said county of Wood, rendered in this cause on the 23d day of March, 1880, against the said William Conkle alias William Swank, and the same must therefore be reversed, set aside and annulled. And this court proceeding to render such judgment as the said circuit court should have rendered, it is considered by .this court that the verdict of the jury rendered in this cause on the 3d day of March, 1880, be and the same is hereby set aside, and that the plea of not guilty pleaded in this cause to said indictment by the prisoner by his attorney on the 23d day of January, 1880, isa nullity and must be held for naught. And this cause is remanded to the said circuit court of the said county of Wood, with instructions to said court to cause the said William Conkle, alias William Swank, to be brought before it, to answer said indictment against him, and to be further dealt with and the cause to be proceeded with upon said indictment according to law, as if no plea of not guilty had ever been pleaded therein, and no trial before a jury had ever been had, or a verdict of a jury rendered therein, or judgment rendered therein by said court against the said William Conkle, alias William Swank, upon the verdict of a jury ; and that the said circuit court further proceed in this oause according to the principles settled in the foregoing opinion, and further according to law.
Judgment Reversed. Cause Remanded.