58 W. Va. 676 | W. Va. | 1906
This is a writ of error to a judgment of the criminal court
Some of the assignments of error are predicated upon rulings of the court as to evidence. One is the overruling of a motion to set aside the verdict, as being contrary to the law and the evidence. Owing to defects in the record, it will be impossible to consider any of these assignments. There is but one paper in the record called a bill of exceptions. It purports to set out evidence in the case, but was not made up and signed either in the term at which the judgment was rendered or within thirty days after the expiration of that term. The term ended on the 20th day of February, 1905, as shown by a certificate of the clerk of the trial court. It affirmatively appears from a vacation order, entered on the 5th day of April, 1905, that the evidence in the case had not then been transcribed by the stenographer from his notes. Therefore, the bill of exceptions could not have been made up and signed at an earlier date. It was not done before the 26th of April, 1905, for that is the date of the certificate of the stenographer. On the 27th day of April, 1905, the court entered an order purporting to make this bill of exceptions a part of the record as of the last preceding term. If the bill of exceptions was inadvertently omitted, at said preceding term, as recited in this order, it did not, at that time, contain the evidence. This appears affirmatively from the vacation order. Under principles settled in Tracy's Admx. v. Carver Coal Co., 57 W. Va. 587, it is clear that the evidence is no part of this record. See also Jordon v. Jordon, 48 W. Va. 600.
It is objected that the record does not show the impaneling of any grand jury, nor the finding of any indictment against the accused. The printed record does not, but certified copies of the record do show these essential steps. Hence, these assignments avail nothing.
The indictment, as returned, appeared to be against Ben Thrayer, and was so recorded in the order showing its return. On his arraignment, the defendant moved to quash, because his true name was Ben Strayer. This motion the court overruled, and then, on motion of the State, by its attorney, permitted the indictment to be amended so as to state the
After the verdict had been rendered and a motion for a new trial made, the indictment with the verdict written on it disappeared. This was brought to the attention of the court by the clerk after having been sworn by the court. The prisoner was present in the court and a record of the fact of the loss was made. Thereupon the court directed the attorney for the State to prepare, as nearly as possible, a true and exact copy of the indictment with the endorsement thereon. This having been done, the court inspected the copy and ascertained, to its satisfaction, that it was a true and exact copy of the original indictment together with a copy of the endorsement of the verdict thereon. Said copy was then filed in the record of the case, to take the place of the original. To this action and ruling of the court, the prisoner objected, and, his objection being overruled, he excepted. It does not appear that any particular objection
As no errror in the judgment is perceived, it will be affirmed.
Affirmed.