This is a prosecution upon an indictment in the circuit court of Mingo County for the robbery of B. C. Bateman against Jacob Eoberts indicted jointly as principal with four others named, tried at the May term, 1901, of said court as to said Eoberts, a verdict of guilty was rendered by a jury and judgment entered thereon, the defendant being sentenced' to a term of years in the penitentiary. The defendant procured a writ of error and his first assignment is that the court erred in refusing •to grant him a continuance of the case on the ground of the absence of material witnesses. The absent witnesses being Elijah Mounts, Sampy Hatfield, Bub Elswiclc and a Mrs. Johnson sister of the defendant Eoberts., all of whom seem to have been summoned except the sister. It appears that Elijah Mounts had met with a railroad accident a few days before the case was called for trial wherein he had lost both his legs and of course was unable to attend. It appears that Mounts was working with others on a raft in the river near to where the robbery occurred. On cross-examination Eoberts said that he did not know whether there were other witnesses present that knew the same facts that Mounts knew or not, and that Eoberts didn’t know what witnesses he had there. On re-direct examination he was caused to say that he had no other witnesses that he could prove the same facts by that he expected to prove by said Mounts. As to the other witnesses, Hatfield lives on the opposite side of the river in Kentucky and James Eoberts, brother of the defendant, says he served notice on him to appear as a witness, that he came over on the West Virginia side to be served and said he would attend and that he was a good friend to the defendant. The witness James Eoberts was asked whether he had made any effort to get Bub Elswiclc, he said that he had sent his brother after him, that his brother got him but he got away from him. His brother, Coz Eoberts, testified that he had a subpoena for Bub Elswiclc, that he went up about a mile and ahalf above Panther to get him, he brought him to Gray, intending to bring him on to the place of trial, when he said he wanted to talk to Mr. Eied, the hotel man at Gray, he went across the walk and went away somewhere, witness did not know where, he hunted and inquired for him but failed to find him or get any further 'information about him. Dorcas Johnson, the defendant’s sister, was not
Defendant claims that court erred in giving instructions Nos. 1, 2 and 3 asked by the State and refusing to give instruction No. 4 asked by the prisoner and by giving instructions 1 and 3 as modified by the court. Instruction No. 1 asked hy the State is as follows: “The court instructs the jury that if they believe from the evidence of this case, beyond a reasonable doubt, that the prisoner, Jacob Eoberts, and Malan Prater, James Eoberts, Thomas Hardin and Edmond Murphy, or any two of them, the prisoner being one, entered into a conspiracy for Hre purpose of
The instruction complained of is given upon the theory that the proof against the defendant is to sustain the charge against hirir as an accessory and not principal and he not being indicted as an accessory but as principal, the instruction is wrong. The instruction charges the jury that if they find that in pursuance of said conspiracy entered into by all of the defendants or any two of them, the prisoner being one, Thomas Hardin and Edmond Murphy, they or either of them being armed with a deadly weapon, to-wit, a loaded gun, assaulted the said Bateman and put him in bodily fear, and by force took from his person the money described in the indictment, and feloniously and violently steal, take and carry away said monejq then they should find the prisoner, guilty, although the prisoner may not liave been present at the time the money was so taken from the person of the said Bateman. “An accessory before the fact is he that, being absent at the time of the actual perpetration of the crime, procures, counsels, commands, incites, or abets another to commit it.” 1 Enc. Pl. & Pr. 66. The crime .of accessory before the fact is a particular one. The absence of the accessory at the time and place of the principal offense is an essential element of the crime. Sir Mathew Hale defines the accessory before the fact to be, “One who being absent at the time of the crime committed doth yet procure, counsel, or command another to commit a crime. Wherein absence is necessary to make him an accessory.”
Instructions Nos. 2 and 3 given for the State are as follows: No. 2. “The court instructs the jury that they are not required by law to disbelieve a witness who has testified before them in
Instruction No. 4 asked for by defendant is as follows: “The court further instructs the jury that before they can find the prisoner guilty, they must be satisfied beyond all reasonable doubt, from the evidence adduced in this case, that a conspiracy existed, and that the prisoner, Jacob Roberts, conspired and confederated with Thomas Ilardin and Edmond Murphy in the commission of the offense charged in said indictment.” This instruction is asked on the theory that the defendant is being prosecuted as an accessory before the fact, while he is indicted as principal and to have made it good in that case after the name Murphy “or one of them” should have been inserted in the instruction. The defendant’s instruction No. 1, “The court-further instructs the jury that before they can find the defendant, Jacob Roberts, guilty as charged in the indictment, they must believe beyond all reasonable doubt, that he entered into a conspiracy and confederation with Thomas Hardin, Edmond Murphy, Malan Prater and James Roberts, or any two of them, for
The defendant’s third instruction as follows: “The court further instructs the jury, that in arriving at a verdict in this case that they are the sole judges of the facts and credibility of each and every witness introduced in said case, and that they have the right to disregard the testimony of any witness or witnesses that have testified in the said case, and may take into consideration the character and motive for the testimony of each and all of said witnesses,” was refused and modified- and given as follows: “The court further instructs the jury that in arriving at a verdict in this case, that they are the sole judges of the facts, and credibility of each and every witness introduced in this case, and- that they have the right to disregard the testimony of any witness or witnesses who in the opinion of the jury may have testified falsely in this case, or give to the testimony of any such witness such weight as in the opinion of the jury the same may be entitled to, and in ascertaining such weight the jury may take into consideration the character and motive of the witnesses as disclosed by the evidence in this case.” The modification was proper, the instruction as offered by the defendant was too sweeping as it was to the effect that the jury had the right to disregard the testimony of any witness or witnesses that had testified in the case without any qualification whatever, which they could not have a right to do and it was properly refused in the shape in which if was offered.
The second assignment is that the court erred in permitting improper evidence to go before the jury as will appear from bill of exception No. 3. This bill of exceptions is that which contains all the evidence in the case and exceptions to certain questions and answers are noted throughout the evidence. This matter is referred to in plaintiff’s brief but calls attention to no particular part of the evidence except that he says, “The defendant offered to prove certain statements made by Bateman, the wounded man, immediately after the robbery, which the court refused to permit, to which ruling of the court the defendant ex-
The evidence refused by the court to be given was that of James Eoberts on behalf of the defendants. “Q. Did you have any conversation with Bateman?” A. “Yes sir, I ask him if he was dead. He was lying flat on his belly and on his face and he turned his face up and said ‘no/ I said, ‘stranger are you dead?’ and he said,.‘no.’” Q. “Did you have any other conversation with him?” A. “Yes sir.” Q. “What was it?” To which last question the counsel for State objected and the objection was sustained and the defendant excepted. Defendant theni asked, “Did Mr. Bateman upon that.occasion say to you that Thomas Hardin and Edmond Murphy had gotten his money, and that he wanted you and Jake to go and try and get his money back from them?” objection sustained and defendant excepted. The first objection should have been overruled as it was a general question as to what the conversation was, while the last question suggested the answer to the witness and the objection was properly sustained. This conversation seems to have been within a few minutes after the robbery was committeed.
The fifth assignment, that the court erred in refusing to set aside the verdict of the jury and grant a new trial because the verdict was contrary to the law and the evidence, it is not necessary here to discuss as the case will at any rate have to be remanded for a new trial. The seventh assignment is that the court erred in refusing to set aside the verdict for the reason that the prisoner was convicted as principal when as a matter of fact if there was any evidence against the prisoner, it only tended to show that he was an accessory before the fact and not principal. When Bateman, the victim of the robbery, was on the stand he was asked, “When you started to go across the river did anybody take you or go with you?” A. “Yes, sir.” Q. “Who?” A. “There was Jim Eoberts, Malan Prater, Thomas Hardin and as well as I can recollect Murphy.” Q. “What occurred when you got across the river — over on this side of the river — on West Virginia?” A. “I was shot and robbed.” On cross-examination he was asked, “Was Jim or Jake Eoberts there at the time you were shot ?” A. “Jim had just turned away he and Malan Prater.” Q. “Who first came to you after you were shot?” A. “Jim Roberts or Jake one, I disremember which,
The defendant demurred to the indictment and moved to quash the same, both of which motions were overruled. The indictment is good on demurrer but there was no order in the record showing the finding of the indictment. The record starts out simply with the certificate of the clerk, “That the grand jurors impaneled and sworn in the circuit court of Mingo County, at the term thereof commencing on the 6th day of May, 1901, in and for the body of said county and attending said court, found an indictment against the defendant Jacob Eoberts for a felony which with the endorsement thereon by the foreman, a true bill, is as follows, to-wit.” So it does not appear from the record that there was either an order impaneling the grand jury or an order finding the indictment by the grand jury. In State v. Gilmore, 9 W. Va. 641, syl. pt. 2, it is held, “The record of the finding of the grand jury is as essential as the record of the verdict of a jury, as it is the only legal proof of the finding of the indictment.” It is never improper to give in the record the order impaneling the grand jury.
When the finding of an indictment is made by the grand jury on a subsequent day to that on which they are impaneled and where the record shows the finding of the indictment by the grand jury, the order referring to the act of the grand jury in returning the indictment'into court would be sufficient, but this at least must be shown. Where this is shown by order of the court the regular impaneling of the jury will be presumed.
In the ease at bar a writ of certiorari would have been issued by this Court to bring up the finding of the grand jury but for the fact that the case must be remanded for a new trial and if the record fails to show the finding of the indictment by the grand jury, the indictment should be quashed. The verdict is set aside, and the case remanded for a new trial to be had therein.
'Reversed.