74 W. Va. 702 | W. Va. | 1914
Paxton Grove, convicted upon an indictment charging Mm with feloniously obtaining the property of another by false pretences with intent to defraud, has appealed. Only one of his assignments of error is meritorious. To that point alone we shall direct discussion.
The statute stands as it has stood in the Virginias for years: “A person indicted for felony shall be personally present during the trial therefor.” Code 1913, ch. 159, see. 2. The right of one under indictment for a felony to be personally present at every stage of his trial can not be denied him. The statute has always been viewed as absolutely mandatory, even when it could be seen that no harm has come from its non-observance. Notwithstanding such strict view ■of the right given, no legislature has seen fit to liberalize the rule. Quite apparently our law makers continue to sanction the policy of the original enactment as strictly interpreted and enforced by the courts. Such strict interpretation and enforcement in some instances seems unnecessarily technical. Particularly is this so when in a case it appears affirmatively that the accused could not have been prejudiced by a slight disregard of the statute. But the right of the accused in a felony case to be personally present at all times during his "trial has ever been deemed rather an inalienable one. The province for change properly lies in the Legislature, not in this court.
The rule applies not simply before verdict, but as well thereafter until judgment. In State v. Parsons, 39 W. Va. 464, it was held: “In felony cases the accused must be present in his own proper person from the inception of the trial upon the indictment to the final judgment inclusive, when
The attorn ey-rgeneral, however, -in his brief claims that the rule does not apply in this case. He says the ' defendant,. though proceeded against for felony, was found guilty only of a misdemeanor. In other words he would say that after the verdict the accused was no more on trial for a felony. How this would be if the verdict was really a finding of misdemeanor, we need not say. For, under the law, the verdict of guilty returned against the defendant herein can be rightly considered none other than a verdict finding him guilty of a felony. True, the verdict recites that the value of the property obtained by the defendant through false pretences was less than twenty dollars. But, as the statute now is, Code 1913, ch. 145, sec. 23, the punishment for ordinary larceny is not applicable to larceny by false pretences. The latter offense is, by the present statute, of felony grade, whatever the value of the property involved. Formerly it was otherwise. State v. Hurst, 11 W. Va. 54; Dull’s Case, 25 Grat. 965. By the enactment of 1891 a significant change was made in section 23 of chapter 145. That section was made to read so that the special punishment therein 'mentioned applies to the provision thereof that the obtaining of the property of another by false pretences shall be deemed larceny, as well as to the other provisions of the section. Before the change made in 1891 it had been held, in the eases last cited, that the punishment mentioned in that section applied only to provisions of the section other than that which stated that the obtaining of the property of another by false pretences should be consider-' ed'larceny. It had been held that the statutory punishment for ordinary larceny applied to the latter. But the change made leaves no room for doubt that the special punishment mentioned in section 23 shall apply to the offense of obtaining the property of another by false pretences, though considered larceny. The section now says that “every person so
The defendant was indicted, tried, and convicted for an offense which by the statute as it now reads is a felony, and he was clearly entitled to the benefit of the statute which provides that one accused of a felony shall be personally present during his trial. For the error in proceeding in the absence of the defendant with a stage of his trial for a felony, the judgment must be reversed and a new trial awarded.
For the purpose of a new trial it is perhaps well to call attention to the fact that the only property sufficiently described in the indictment is ‘150 coupons detached from passenger tickets issued by the Chesapeake and Ohio Railway Company for passage between Durbin station and Cass station of said railway’, and that proof only of the obtaining of these particular coupons is admissible. On the former trial evidence of the obtaining of other coupons was let in. The defendant did not except, but in fairness and regularity the trial should be made to conform to the allegations of the indictment.
Reversed, and neto trial aiuarded.