76 W. Va. 263 | W. Va. | 1915
Sufficiency of the indictment on which the plaintiff in error was convicted of the carrying of a pistol, in violation of the statute, is denied, on the theory that it charges several offenses in a single count; the averment being that the prisoner unlawfully carried ‘ ‘ certain revolvers and other pistols, dirks, bowie knives, slungshots, billies, metalic and other false knuckles and other dangerous and deadly weapons of like kind and character,” without a state license therefor as required by law.
Though the practice illustrated here may be a departure from that anciently required and observed, it is sustained by the overwhelmning weight of modern authority. The decisions cited in support of the text in 22 Cyc. p. 308, show it to have been recognized in thirty-two of the American states. The rule or principle enunciated by them is stated as follows in Cyc.: “So where a penal statute mentions several acts disjunctively and prescribes that each shall constitute the same offense and be subject to the same punishment, an indictment may charge any or all of such acts conjunctively as constituting a single offense.” In conformity therewith, indictments under statutes regulating the sale of intoxicating liquors, charging sales of all the various kinds of liquors, sales of which without a license were inhibited, have been sustained, although the sale of any one of them and every separate sale of each kind, constituted an offense. Teft v. Com., 8 Leigh 721; State v. Swift, 35 W. Va. 342; State v. Boggess, 36 W. Va. 713.
Intimations of disinclination on the part of this court to extend the practice beyond indictments under such statutes must be taken subject to a test of the principle, if any, on
The inclusion of more than one felony of the same general nature in a single indictment is not ground of demurrer at common law. State v. Blakeney, 96 Md. 711; State v. McNally, 55 Md. 559; Strahern v. State, 37 Miss. 422; U. S. v. West, 7 Utah 437; Pointer v. U. S., 151 U. S. 396. Such a joinder is improper, but the remedy for the defect is a motion to require an election by the state, not a demurrer or motion to quash or arrest of judgment. If the offenses are of the same nature, they may be joined, though they differ in degree. Lazier v. Com., 10 Gratt. 708; Arch. Crim. Proced. 310. At common law, several misdemenors may be joined by the use of different counts, if they are of the same nature and subject to similar punishments, and perhaps whether similar in nature or not. Arch. Crim. Procecl. 311, note; Young v. Rex, T. R. 98. In view of this rule, the argument ah incon-venienti wholly fails. As the accused may be charged with two or more offenses in one indictment, by the use of several counts, he must prepare to meet all of them, when he is so charged.
Joinder of two or more offenses in the same count has always been condemned, because violative of the technical rule forbidding duplicity. But that rule is not designed for the protection of the accused. Its purpose is to require observance of mere matter of form, for avoidance of prolixity and confusion and in the interest of convenience and good form. Sweeney v. Baker, 13 W. Va. 158, 200; Coyle v. B. & O. R. Co., 11 W. Va. 94; Bouv. L. Dict. It was always more objectionable in pleas than in declarations or indict
Rebuttal testimony of the prosecuting witness to the effect that he had given the grand jury the names of two others, as witnesses for the state, who had testified on the trial that they had been present on the occasion of the alleged offense and had not seen any pistol in the possession of the accused, was admitted over his objection. This fact was a self-serving act of the witness, put in for the purpose of strengthening his credibility. It bears no relation to any question of time or circumstance dependent upon the recollection of witnesses, as did the declarations admitted in Roane Lumber Co. v. Lovett, 72 W. Va. 328, and no principle justifying its admission is recalled or has been brought to our notice in the argument. "Whether its admission was reversible error, it is unnecessary to inquire, since the judgment must be reversed for another error.
On the argument of the case, the prosecuting attorney was
For these errors, the judgment will be reversed, the verdict set aside and the case remanded for a new trial.
Reversed and remanded for new trial.