85 W. Va. 293 | W. Va. | 1919
On this second writ of error in the case reported in 81 W. Va., 98, to a judgment rendered as upon a verdict of guilty of involuntary manslaughter, returned by the jury in the new trial awarded, the assignments of error go to the form and substance of the verdict, admission of certain evidence, the giving of an instruction at the instance of the state, refusal of instructions for the prisoner, remarks of counsel in the argument of the case and the motion for a new trial and in arrest of judgment.
The judgment will have to be reversed for lack of a sufficient verdict on which to base it. There is a verdict of acquittal as to murder and voluntary manslaughter, but no verdict of con-' viction of any offense by name or in legal effect. After having
Except in instances in which a statute requires it, a verdict of guilty as charged in an indictment for an offense which necessarily includes others, is sufficiently certain. It need not, in
If the theory of the trial court, has been correctly surmised, it fails for an additional reason. On an indictment for murder in the statutory form, there can be no conviction of assault and battery, because the offense is not necessarily charged in the indictment. State v. Lutz, decided contemporaneously with this case. Although an instruction warranting conviction of assault and battery on the indictment was inadvertently approved in the opinion delivered on .the former writ of error, in the absence of any challenge of the correctness thereof, on the ground of non-inclusion of that offense in the indictment, it must be disapproved for the purposes of the new trial to be’ awarded on this writ of error. The trial court may not have erred in repeating it after such approval. As to that, it is unnecessary to express an opinion, in view of inevitable reversal upon another ground. A verdict convicting the accused of assault and battery, under this indictment, and a judgment thereon would be void, whether, technically, there was error in giving the instruction or not. Moore v. State, 59 Miss. 25. Upon principles stated in Wiggin v. Marsh Lumber Co., 79 W. Va. 651, Culp v. Virginian Railway Co., 80 W. Va. 98, and Pennington v. Gillaspie, 66 W. Va. 643, it 'may now be disapproved for the purposes of further procedure.
Presumptively on account of lack of independent, direct and express evidence of the capacity of the accused to understand and fully comprehend the nature and consequences of the act resulting in the death of the boy he cut-, he being of tender years at
The accused requested six instructions respecting the issue as to his capacity to comprehend the nature of his act, three of which the court gave. He complains of the refusal of the other three. Those given sufficiently cover the applicable' legal propositions pertaining to the subject' and substantially include every proper one found in the others. The prisoner has had the benefit of all the instructions he was entitled to, respecting that phase of the case; and some of them may have accorded him more than was due him. As the state has not challenged the correctness of any of those given, we neither approve nor condemn them.
Although, after a previous conviction of involuntary manslaughter, on the indictment, the prisoner could not be convicted, in a subsequent trial on the same indictment, of any offense higher than involuntary manslaughter, because of the constitutional inhibition of second jeopardy, it was n6t improper to admit the evidence of a physician describing the injury of the deceased, narrating the surgical treatment administered and stating the time and cause of his death. The state had obvious right to prove the nature and consequences of the injury, even though revelation thereof might excite horror and pity on the part of the jury. It was necessary to prove the death and its cause to make out a case of involuntary manslaughter.
The remarks of the prosecuting attorney in argument, complained of, were manifestly improper. The remand of a case for a new trial carries no presumption or implication of sufficiency of the evidence, in the opinion of the appellate court, to sustain a verdict. But it may be doubted whether any foundation for an exception was laid. The bill of exceptions shows no protest to the court against the argument nor any request for a direction to the jury to disregard it. As a new trial is to be awarded for other reasons already stated, our disapproval of
For the errors noted, the judgment will be reversed, the insufficient verdict set aside, and the case remanded for a new trial.
Reversed and remanded.