44 W. Va. 315 | W. Va. | 1898
Lead Opinion
Cross was found guilty of murder in the second degree, and sentenced to the penitential, and sued out this writ of error.
He offered two special pleas, which were rejected on demurrer. One sets up that he had been tried by a jury, and found guilty of voluntary manslaughter, and the court, of its own motion, set the verdict aside, and thus acquitted him, and prayed judgment of discharge. This plea is bad. A plea of former conviction or acquittal, called a plea of autrefois convict and autrefois acquit, is, unlike a plea in abatement or other dilatory plea, a plea in bar, is viewed with liberality, and may be of less definiteness and certainty than an indictment. Technical accuracy is not required, but it must aver all facts essential to the defense. 9 Enc. PI. & Prac. 633, 633; 11 Am. & Eng. Enc. Law, 964; I Bish. Cr. Proc. § 808. This plea does not name the person whom Cross was charged with murdering. It does not in any wise aver that the felony for which he had been tried was the same for which he was being then prosecuted. It does not say he was being prosecuted further on the same indictment. It does not say for what act he had been tried, unless we infer that it was homicide from the use of the word “manslaughter.” We may indulge in a weak inference that he had been found guilty of manslaughter upon the same indictment, but it would be mere inference. It names the court in which the former trial occurred, but does not aver that it had lawful jurisdiction of the case. The plea fails in such essentials. 9 Enc. Pl. & Prac. 634; 11 Am. & Eng. Enc. Law, 964; 1 Bish. Cr. Proc. § 810; State v. Evans, 33 W. Va., 417, (10 S. E. 792); Justice's Case, 81 Va. 209; 3 Greenl. Ev. § 36. The plea does not vouch the record; that is, after alleging the proceedings on the former trial to show the essentials of such plea, say, “as by the record thereof fully appears,” or equivalent expression. This seems necessary. I would think it woitld suffice to aver facts shown by the record, and then prove them by it, making the record mere matter of proof; but this does not seem to be so on authority. 9 Enc. Pl. & Prac. 635; Wortham's Case, 5 Rand. 669; Myers' Case, 1 Va. Cas.
But the record shows upon this same indictment a former trial and verdict for voluntary manslaughter, set aside by the court, and a second trial, not limited to manslaughter, but for murder, and a conviction of murder in the second degree. No plea of such former'conviction of manslaughter was necessary; clearly not. Such plea would be necessary if the verdict had been in another court, or in the same court upon another indictment, because a plea would be necessary to present in this case extraneous matters from another record; but the court will take judicial notice, or, more correctly speaking, will look through the entire record of the case, and must take its steps with eyes open to all in the record which it is bound to see. In Foster v. State, 25 Tex. App. 543, (8 S. W. 664, note 4 in 9 Enc. Pl. & Prac. 635); it was held that no plea was in such case necessary, not, as there stated, that, if a plea is used, it need not vouch the record. The defendant could avail himself of the former conviction against further prosecution by objection to being put on trial for a higher offense than manslaughter, before the second trial, or, after verdict on the second trial, he cotild do so, as he did, by motion in arrest of judgment, as this motion required the court to scan the record to discover any error in it, or anything preventing judgment on the second verdict.
This motion in arrest of judgment brings us to an important matter, which has not, so far as I know, been decided in this State. What is the effect of the first verdict? I answer that, if it is not void, it forbade a trial for murder, and limited the second trial to manslaughter. Upon an indictment for murder, the jury can find the defendant guilty of murder in the first or second degree, or voluntary or involuntary manslaughter. It not only can, but must, consider and decide of what degree of criminal homicide, if any, -he is guilty; and, when once it decides that he is guilty
I said above that, if the verdict of manslaughter is valid, it bars a prosecution for murder; for it is clear, on principle and authority, that if the court in which was the former acquittal has no jurisdiction, or if the judge holding the court is no j udge, and not authorized to put the party on tr,ial, or impanela jury, the proceeding is coram non judice and no legal jeopardy existed, and its action constitutes no bar against the further prosecution. “Judgment, if not by the proper judge, is of no effect.” Hawes, Jur. § 35. 1 Bish. New Cr. Law, § 1028, says: “If the court has no jurisdiction of the offense, or if the statute creating it is unconstitutional, or the term it is holding is unauthorized, or otherwise it has no power over the thing,
In March, 1897, an order was made in the case stating that, under a recent act of the legislature, the election of the special judge was void, and setting aside the verdict of manslaughter. If such election was void, this order would be correct; if not, it would not be correct; and, if the accused had not asked a new trial, he could at least insist upon being sentenced for manslaughter only, and could reverse the verdict of second degree murder; but as he asked a new trial, it would not prevent a retrial for manslaughter, — would not work his acquittal. Younger v. State, 2 W. Va., 579; Livingstone’s Case, 14 Grat. 593. Is the verdict void? The record states that on February 23, 1897, the regular judge being on the bench, but being so situated as to render it improper to preside at the trial of “certain causes,” the clerk held an election of a special judge “to preside thereat.” The cases in which the special judge was to preside are not named. This cause is not named. It was not an election for this cause. No order of the court to hold such election appears, but, it was held by the clerk, the attorneys being the electors. It was held under section 11, chapter 112, Code 1891, in ignorance of chapter 49, Acts 1897, which had gone into force three days before this election. This new act provides that “no such election” of a special judge shall take place, when the regular judge is present (as the record shows he was), without an order of court “entered of record, reciting the cause for such election, and naming the cases in which it is necessary to have a special judge,” and in ea,ch case no
As to chapter 49, Acts 1897, it appears to me to be important to refer to the fact that it amends and re-enacts section 11 of chapter 112 of the Code, instead of section 2. This misnaming of the section is clerical error. We look at the intent of the legislature in a given act as we do the act of private parties in a deed. We look at the legislation in this act, and we see plainly that it relates to section 11 of the Code of 1891, and has not the faintest reference to the matter of section 2- We see that the intent was to legislate upon the subject of special judges, not upon the subject of the jurisdiction of circuit courts, which is the sub
It is assigned as error that the court allowed witness Gilbert, after he had stated that he went close to accused after the homicide to see if he had been drinking, and the prisoner stated to Gilbert that he (Cross) had been drinking, to tell the jury what evidence of drink he found, and he answered: “This all occured at the same, or about the same, time,” — that is, what he stated as to the' prisoner’s conversation. I see no objection to this. The State had a right to disprove or prove intoxication in this way.
We see no objection to 1he statement of the justice holding the preliminary examination that, after the prisoner had been sworn as a witness, some one suggested that the pistol had not been found, and he had him stand up, searched his pockets, and found a pistol. A statement of the prisoner on the witness stand could not be given in evidence. State v. Hobbs, 37 W. Va., 812, (17 S. E. 380). This was no statement. The fact that a pistol was found, if material, was admissible, no matter how it was found, even if the prisoner’s right was violated, as it was not, by the search. But Cross did not deny, but admitted, that he had a pistol and that it killed his sister. How, then, could the discovery of the pistol on his person hixrt him? Cross did not object to the search. Baker's Case, 33 W. Va., 319, (10 S. E 639) upholds this evidence.
There is nothing in the matter contained in bill of exceptions 5. It is assigned as error that the wife of Cross was sent before the grand jury which found the indictment. We do not know that Rosy Cross at the foot of indictment is his wife. If so, other witnesses were before the grand jury, and we cannot say the indictment was wholly or in part based on her evidence. And we could not quash an indictment for incompetent evidence. And, if a good objection, it should have been pleaded in abatement. There is no objection to asking Garrison, “Was the pistol loaded when you let him have it?” and, “How many loads were in
Finally, as to the motion for a new trial. Cross admits that he killed his sister by a shot from a pistol; but pleads that it was accidental, owing to its unintentional discharge, while handling or “fooling” with it. Three juries have negatived this plea, — one sentencing" him to the penitentiary for life, the second finding him guilty of voluntary manslaughter, and the third of second degree murder. Two of these verdicts have been approved by two different judges,- — Judges Jacobs and Blizzard. Many witnesses and circumstances were before the jury. Evidence was before the jury going to show that a few hours before the shooting Cross went to the house of Garrison, and asked the loan of a revolver. He said as a witness that he did not get it at the house, but elsewhere, in a scuffle, saw it in young Garrison’s pocket, and took it out, denying Garrison’s evidence, and seeking to show that he did not go expressly for the pistol. He says that he wanted the pistol to defend himself, as he had heard that a dance to be held at his house the night of that day would be broken up by violence. He says he did not know the revolver was loaded, yet he made no quest anywhere for ammunition, and the revolver had four charges in it. Strange, that he would get an empty revolver to defend himself, and keep it for hours without effort to get ammunition. He and his wife went to the sister’s house Thursday afternoon, and she went in the house while he went to a railroad station and procured alcohol, and drank some, and then went to his sister’s, finding there his wife and sister, her three small children, and a hired girl, Maggie Delaney, and took up and fondled one of the children. He then took from his pocket this revolver, and brandished it. His
Dissenting Opinion
(dissenting):
I dissent from the opinion in this case, for the reason that the special judge appointed, and under whom a jury properly selected found a verdict of involuntary manslaughter, was at least a de facto judge, whose proceedings were binding on the prisoner and State alike. In the case of Smurr v. State, 105 Ind., 133, (4 N. E. 450), it is said: “We have many cases declaring that where a party goes to trial without objection, before a judge assuming to act under color of authority, he cannot, after judgment or conviction, successfully make the objection that the judge had no authority to try a cause. Feaster v. Woodfill, 23 Ind. 493; Mitchell v. Smith, 24 Ind. 252; Watts v. State, 33 Ind. 237; Winterrowd v. Messick, 37 Ind. 122; Rose v. Allison, 41 Ind. 276; Kennedy v. State, 53 Ind. 542; State v. Murdock, 86 Ind. 124; Fassinow v. State, 89 Ind. 235; Huffman v. Cauble, 86 Ind. 591; Board v. Sealon, 90 Ind. 158; Kenney v. Phillipy, 91 Ind. 511; Myers v. State, 92 Ind. 390, see page 396; Wood v. Franklin, 97 Ind. 117; Rogers v. Beauchamp, 102 Ind. 33, (1 N. E. 185).” To these may be added Greenwood v. State, 116 Ind. 485, (19 N. E. 333); Schlungger v. State, 113 Ind. 295, (15 N. E. 269); Works, Court & Jur. §§ 28, 60, 61, p. 390. Also it is said in same case, page 133, 105 Ind., and page450, 4 N. E.: “There is some confusion, and perhaps conflict, in the earlier cases; but the later cases, supported, as they are, by all well-considered cases in our Reports, must be regarded as firmly settling the rule that where a judge assumes to act under lawful authority, and there is color of authority, his acts will not be void, and that, if the party voluntarily goes to trial without objection, an objection after conviction will be too late to be of avail. This is in harmony with the great weight of authority elsewhere. Bank v. McCall, 4 Bin. 371; State v. County Court of Boone Co., 50 Mo. 317; Blackburn v. State, 3 Head, 690; Clark v. Com., 29 Pa. St. 129; Com. v. Hawkes, 123 Mass. 525; Com. v. Tabor, Id. 253; Sheehan's Case, 122 Mass. 445; State v. Anone, 2 Nott & McC. 27; State v. Alling, 12 Ohio, 16; Masterson v. Matthews, 60 Ala. 260; Mayo v. Stoneum, 2 Ala. 390; State v. Carroll. 38 Conn. 449.”
It is insisted that, because the regular judge in attendance failed to make the necessary preliminary order directing the election of a special judge, the election held by the members of the bar and the selection made was void, and that, therefore, the appointee was no judge at all, and all his proceedings were invalid ; in short, that unless he was a de jure judge he could not be such de facto. This reasoning does entirely away with the distinction between the terms Udejure” and ude factor The legal definition of an officer de facto is “one who has the reputation of being the officer he assumes to be, and yet is not a g-ood officer in point of law.” State v. Carroll, 38 Conn. 449. In short, he is a person filling an office by a void appointment or selection thereto. In Carleton v. People, 10 Mich. 259, it is said: “All that is required when there is an office to make an officer de facto is that the individual claiming the office is in possession of it -performing its duties, and claiming to be such officer under color of an election or appointment, as the case may be. It is not necessary that his election or appointment be valid, for that would make him an officer de jure. The official acts of such per
Rehearing
ON REHEARING.
A petition for rehearing for the first time makes the point that it does not appear that the indictment has the indorsement, “A true bill,” The record does not show that the indictment had not such indorsement. It says that the grand jury “reported an indictment against Frank Cross for a felony, £A true bill. ’ ” This imports that it has such indorsement. The absence of a statement that there was such endorsement does not prove that there was not. It in effect says that there was. Brotherton v. Peo
Affirmed.
