64 W. Va. 366 | W. Va. | 1908
The grand jury of Ritchie county at the January term, 1907, returned an indictment “for felony” against Mike Doyle for unlawful retailing, containing an allegation that he had been convicted at a former term for a like offense.
At the same term at which the indictment was found the prosecuting attorney waived the charge of felony contained in the indictment to which the defendant objected and moved the court to quash the indictment, which motion was overruled by the court, to which ruling of the court in refusing to quash the indictment the defendant excepted and .entered his plea of not guilty. The case was continued and at the next term a jury was impaneled and reuirned a verdict of guilty of a misdemeanor as charged in the indictment. The defendant moved the court to set aside the verdict and grant him a new trial because the same was contrary to the law and the evidence, which motion the court overruled and to which ruling of the court the defendant excepted. The defendant moved the court in arrest of judgment, which motion was also overruled and defendant excepted. The defendant then moved the court to suspend its judgment for thirty days which motion was also overruled and defendant excepted, and the
The defendant procured a writ of error and supersedeas and says the court erred in allowing the prosecuting attorney to waive the felony charged in the indictment and to compel the defendant to go to trial on another and different charge than that for which he was presented by the grand jury; that the court erred in overruling the motion of defendant to quash the said indictment; in admitting improper evidence on behalf of the state as shown in the bill of exceptions No. 1; in giving the oral instructions given by the court on its own motion and not on the motion of the state, over the objection of the defendant; and in refusing to set aside the verdict and not granting a new trial.
The first assignment of error is the waiver by the prosecuting attorney of the felony charged in the indictment and placing the defendant on trial for a misdemeanor which he claims was a violation of his constitutional rights in that he was tried for an offense which was not charged in the indictment. The indictment is for the unlawful sale of intoxicants without a state license therefor and has all the elements of a good indictment for unlawful retailing, but coupled with that is the fact of a former conviction for a like offense alleged in aggravation of the offense charged in the indictment. Section 4583, Code 1906, provides: “If a person indicted of felony be by the jury acquitted of part and convicted of part of the offense charged, he shall be sentenced for such part as he is so convicted of, if the same be substantially charged in the indictment, whether it be felony or misdemeanor.”
In case at bar there was no amendment of the indictment by striking out any portion of it to bring it within the influence of Bain's Case, 121 U. S. 1, as claimed by the defendant. In that case a part of the indictment was stricken out so that it was held not to be the indictment found by the grand jury. The prosecuting attorney in case at bar simply declined to prosecute upon the charge of felony or to prove the aggravation as alleged in the indictment, but was content to try it upon the misdemeanor which was well alleged in the indictment. As to the duty of the prosecuting attorney, Mr. Bishop in the 1st volume of his Criminal Law, section 815 (¡2), says: “In all our States, the prosecuting officer acts under a
Suppose the prosecuting attorney had gone to trial upon the indictment as it stands and had proved the sale charge in the indictment but had offered no evidence of the fact of former conviction of a like offense, it would hardly be questioned that the jury would have had a right to convict for the unlawful sale charged and the defendant be sentenced as for a first sale. The prosecuting attorney simply chose to prosecute for the misdemeanor and not exact the penalty for the felony of which it would seem the defendant could not complain. Section 1391, Bishop’s New Criminal Procedure, says: “The simple form of the nolle prosequi is to the entire indictment, but it may be to a part of the counts or even to a separable part of any one count, such as on an indictment for the burning of a dwelling house and barn it may be to the barn alone. * * * * On a charge of assault with intent to murder there may be a nolle prosequi as to this intent and a conviction for the assault alone.” And section 1390 says the prisoner’s consent to such nolle prosequi is not essential.
It is complained that the court erred in giving the oral instructions, the first telling the jury, “That while there are two sales alleged which would constitute a felony, the felony has been waived by the prosecuting attorney and you are only to try the case as if it were a single sale and you are not to allow the existence of the charge on the face of the indictment to prejudice jmu in your finding;” whereby the jury was specifically instructed to disregard the aggravation of the offense by the fact of the former conviction as alleged in the indictment. It is contended that this oral instruction misled the jury to the prejudice of the defendant in that it states contrary to law that there are two sales alleged in the indictment which would constitute a felony. The jury could not have misunderstood this instruction as they were particularly charged that they were to try only for the single sale, a simple violation of the law in making a sale, and there was no evidence in the case except as to the single transaction mentioned by Shrader and the circumstances attending that one transaction between witness Shrader and the defendant was all that was left in the case when the prosecutor did not choose to prove the former conviction,
The other oral instruction was that they, the jury, were “the sole judges of the weight of the testimony and what it proves, that being a matter peculiarly within the province of the jury to determine.” As to this instruction the law is so well settled that it would seem to be unnecessary to say anything further concerning it. As said in Bowyers' Case, 43 W. Va. 180, “It is not worth while to cite authority for the proposition that where there is evidence tending to crim-inate, the jury is almost uncontrollably the judge of its force and weight, and of the proper inferences from the facts proven.”
There were exceptions taken to the ruling of the court in permitting certain evidence to go to the jury. Witness John M. Collins testified that he arrested defendant on a warrant sworn out by Shrader for selling whiskey. Objection was made to witness’ reference to the warrant as the warrant was the best evidence and should be introduced, but the court ruled that the warrant was only used as evidence to fix the time that the witnesses Collins and Moss were on defendant’s premises, they having been there to search for whiskey and other intoxicating liquors and looking for the money which
As counsel for defendant make no mention in their brief of the error assigned in the court’s refusal to suspend the judgment for a period of thirty days, they do not seem to rely upon it and we think there is nothing in the assignment.
We see no error in the judgment and it must be affirmed.
Affirmed.