Lead Opinion
This is а writ of error to the judgment of the circuit court of Lewis county, sentencing the defendants to thе penitentiary of this State.
The prisoners were indicted for the murder of Benjamin H. Edgar, and on thе 29th day of May, 1904, were jointly tried, -and Oley Moore and Hanson Moore were found guilty of
The defendants makе several assignments of error, one of which is that the plea of “not guilty’’ was entered by théir attоrneys and not by them in person. The order making up the issue in the case, shows: • “This day came the state by the prosecuting attorney and the defendants in their proper persons and by attоrneys, and the defendants, by attorneys, demurred to said indictment, and the said demurrer being considerеd by the court, is overruled, and the defendants, by their attorneys, for x>lea says that they are not guilty in manner,” etc.
Before a person can be legally convicted of a felony, it is necessary that he be present in court, and рlead to the indictment against'him in person, and the record must affirmative^ show this. And where the record shows thаt the plea was entered by attorney, and not by the prisoner in person, it is error, for which this Court will reverse the judgment. The record in this case clearly shows that the plea was enterеd by the attorneys for the defendants. But it is argued by the attorneys for the State that inasmuch as the рrisoners were present in court at the time their pleas were entered, and that all thаt was done was done by their attorneys, in their presence, that this satisfies the law which requires that their pleas shall be entered by them in person, and that while it is, literally speaking, a plea by their attorneys, yet, within the spirit and true meaning of the law, it should be regarded as being done by them in person, because what was done by their attorneys in their presence and at their direсtion, is, in law, the doing of that particular act in person. This argument is not without reason, and cоmes with considerable force, but is made in the face of numerous decisions of this State аnd Virginia, holding that the record must show the presence of the prisoner, and that he plead in person.
This question has been before the Court so often, and has been-so clearly dеcided and the rule so firmly settled, that it
It is also. assigned as error that the record fails to show that the jury which tided the defendants were sworn. -Upon an examination, we find in the order impaneling thе jury, and after giving their names, this language: “ Who were elected according to law to well and truly try and true deliverance make between thе State of West Virginia, ” etc. The order shows an attempt to swear the jury, and, in all probability, they were properly sworn, but, through the inadvertence of the clerk, the record fails to so show. The absolutely essential word, sworn, was omitted, and the omission of which is, of course, fatаl to the verdict. We must take the proceedings of the trial as they appear on thе face of the record, and be guided absolutely thereby, and if it discloses error, we must reverse the judgment, It is hardly necessary to cite authorities to show that a person cannot bе legally convicted unless the record shows that the- jury which tried the case were sworn according to law. It is not necessary that the oath should be copied into the order, but the rеcord must affirmatively show somewhere and in some way that the jury were sworn in the manner prescribed by law before there can be a legal conviction. It will not suffice to say that thejjury wеre elected according to law — it must show that the jury were sworn according to law. Code, chaptеr 129, section 6; 12 Ency. Pl. & Pr. 515, 521; Younger's Case, 2 W. Va 579; Lawrence v. Commonwealth, 30 Grat. 845; State v. Ice,
For the foregoing reasons, the judgment of the circuit court, sentencing the prisoners to the penitentiary, is reversed, the verdict of the jury set aside, and a new trial awarded to each of the defendants.
Reversed.
Concurrence Opinion
(concurring);
I concur; but I am not clear that the idea is to be regarded as made by the attorney. ' When arraignment was”'a necessary part of trial, the рrisoner was asked for his answer to