38 W. Va. 58 | W. Va. | 1893
Upon an indictment and conviction for unlawful shooting with intent to kill. In the Circuit Court of Marion county, on the 22d day of Xovember, 1892, the grand jury returned against the prisoner, R. T. Harr, the following indictment, a true bill: “Indictment. State of West Virginia, Marion County, to wit: In the Circuit Court of said county, November term, 1892. The grand jurors of the State of West Virginia in and for the body of the county of Marion, and now attending the Circuit Court of said county upon their oaths present that R. P. Harr, on the
“J. A. Haggerty, Prosecuting Attorney.
“Found on the evidence of Frauk Craves and others, a "witness sworn iu open court, and sent to the grand jui’y to give evidence at the instance of the State.” ■
Indorsement on said indictment is as follows :
' “State of West Virginia vs. R. P. Harr. An indictment for a felony. A true bill.
“T. N. SwisnuR, Foreman.”
On the 25th .day of November, 1892, the prisoner appeared in person, and moved to quash the indictment, which motion the court overruled, and thereupon the. prisoner pleaded “Not guilty,” putting himself upon the country; and the State did the like. On the 10th day of March, 1893,the jury returned the following verdict: “We, the jury, find the defendant, R. P. Harr, not guilty of maliciously shooting John J. Martin with the intent charged in the within indictment, but we find said defendant, R. P. Harr, guilty of unlawfully shooting said John J. Martin with the intent charged iu the within indictment.”
Thereupon the prisoner moved the court to set aside the verdict, and grant him a new trial, upon the ground that the verdict was contrary to the law and the evidence ; but the court overruled the motion, and fixed the term of his confinement in the penitentiary at the period of two years. The prisoner excepted, and the court certified all the evidence, and the case is here on writ of error.
The indictment is founded on section 9 of chapter 144 of the Code (see Ed. 1891, p. 897) which is as follows : “If a person maliciously shoot, stab, cut or wound any person, or by any means cause him bodily injury with intent to maim, disfigure, disable or kill, he shall, except where it is otherwise provided,be punished by confinement in the penitentiary not less than two nor more than ten years. If such act'be done unlawfully, but not maliciously,
The facts of the easp are as follows: John J. Martin, the party shot, was mayor of the town of Monongah, in the county of Marion. On the 26th day of September, 1892, he was in his office up stairs in the Lanhatn building. Mrs. Eva R. Harr, the wife of the prisoner, was before him, as mayor, on the charge of illegal selling of liquor, for which she had been fined. Martin was sitting at his desk between two windows. lie got up from his desk, and went to the right-hand window to look out, to see who was on the upstairs porch of the building. The prisoner was in his own house, one hundred and eighty five feet away, at a window in the rear of his house, from which point the -window where Martin was standing when shot was visible, and when Martin came to the window of his office up stairs the prisoner, from the inside of his own house near the window, shot Martin with a rifle (thirty-two calibre) the ball entering the r’ight shoulder about two inches below the top, a little in front of the center of the right arm, and, ranging up, broke the collar bone. The ball lodged in the body, inflicting a very dangerous wound, from which Martin was confined to his house some five or six weeks. Harr seems to have been laboring under great excitement at the time, caused by the prosecution.and arrest of his wife; for immediately after-wards he expressed profound regret and went to the courthouse and gave himself up to the officers of the law. This no doubt induced the lenient finding of the jury and the sentence of the court.
The counsel for the prisoner make six assignments of error, as follows:
“(1) The court erred in overruling the defendant’s motion to quash the said indictment.
“(2) The court erred in allowing Ray llolbert, a witness on behalf of the State, to state from his knowledge and belief who the man was, whose leg he saw while looking through the window of Harr’s house.
*62 “(3) The court- erred in allowing to be produced in evidence, on behalf of the State, the plat made by -1. W. Paul, and the testimony in relation thereto, for the reason that the plat is not complete, it being already proved by the State that there is a building between the mayor’s office and Harr’s house, while the plat shows no such building.
“(4) The court erred in refusing to admit in evidence, on behalf of the defendant, the record of the habeas corpus proceedings in the case of the Town of Monongah v. Era R. Harr, wife of the defendant.
“(5) The court erred in sentencing the defendant to confinement in the penitentiary, for the reason that the jury did not-find the defendant guilty of feloniously shooting, but simply unlawfully shooting, which is a misdemeanor,, not a felony; that the latter clause of section 9, e. 144, (lode 1891, providing that the court, in its discretion, may sentence the defendant for a felony when only convicted of a misdemeanor, is contrary to the constitution of the State of' West Virginia.
“(6) The court erred in refusing to set aside the verdict and grant a new trial, because the verdict was contrary to the law and the evidence, and because of other errors assigned.”
The plain inference from the testimony is that the witness knew the prisoner, and “it is the constant practice to receive in evidence any witness’s belief of the identity of a person, provided he has any knowdedge of such person.” 1 Green]. Ev. ⅜ 140 ; Hopper's Case, 6 Gratt. 684. It is not a case of “expert testimony,” but depends upon the observation and knowledge of the particular witness in the given case, no matter what his science, skill or experience may be in the matter of identifying persons. His evidence is competent, the weight being a question for the jury.
The statute, as construed and applied in these cases, provides for an offence which, it divides into two classes: (1) Malicious shooting, etc., with intent to maim, disfigure,
In this State offences are either felonies or misdemeanors. Such offences, as are punishable with death or confinement in the penitentiary, are felonies; all other offences are misdemeanors. Section 1, c. 152, Code (Ed. 1891, p. 948). It is the punishment prescribed by statute, which determines whether the offence be felony or not; so that in this State there are no felonies except such as are so designated by statute.
In this case the indictment charges the prisoner with the commission of a felony. lie wras tried according to the rules and practice proper in cases of felony with all constitutional guaranties carefully secured to him, and the jury found him guilty of a felony of the second class — the one corresponding to manslaughter — and the term of His confinement in the penitentiary was ascertained by the court. It is true the statute gives the court the discretion to fix a less punishment, but that does not reduce the grade of the crime. And this view of the law is recognized by section 21, c. 152, Code, as follows : “The term of confinement in the penitentiary or jail in case of conviction for felony, where that punishment is prescribed, shall be ascertained by the court.”
The judgment-is affirmed.