127 S.E. 637 | W. Va. | 1925
The defendant was indicted at the September Special Term 1924 of the Circuit Court of Barbour County, upon an indictment charging him with malicious and felonious assault with intent to maim, disfigure, disable and kill one Hazel Boudman. To this indictment he filed a special plea of autrefois acquit in which he averred that at the April Term 1923 of the Circuit Court of Barbour County he was indicted for the murder of Hasel Budman (Hazel Boudman); that at the said term of court he pleaded not guilty to the indictment; that at the October Term of said court 1923, and for three successive terms thereafter, the trial upon the indictment was continued upon motion of the State, but for none of the causes mentioned in the statute. Defendant then vouched the record of the proceedings had on the prior indictment, and further averred that the indictment herein is for an offense against the same Hasel Budman (Hazel Boudman), which was described in the indictment for murder, and defendant is the same defendant named in the murder indictment; that the offense charged against defendant in each of the indictments, is the same overt act of defendant and charged to have been committed at the same time, and both of the offenses charged are one and the same act of defendant and charged against the same person. Defendant further averred that since he has been discharged from the murder indictment by reason of the failure of the State to prosecute him therefor within the time prescribed by sec. 25, chap. 159, Code 1923, he is entitled to be exempt from prosecution under the present indictment found at the September Special Term 1924.
The State demurred to the special plea of autrefois acquit. The court sustained the demurrer, and upon its own motion certified the following questions to this court:
"1. Is the plea good on its face?
2. Does an indictment for murder in the form prescribed by section 1, of chapter 144, of the Code, include the felony described in the indictment herein, which was found under section 9, of chapter 144, of the Code?
3. Does the dismissal of the murder indictment above mentioned, preclude the State from trying the defendant *36 under the present indictment for feloniously and maliciously shooting, cutting, stabbing and wounding the prosecuting witness with intent to maim, disfigure, disable and kill?"
The indictment for murder upon which defendant was discharged, was in the form prescribed by sec. 1, chap. 144, Code 1923. It charged that "defendant on the _____ day of February, 1923, in the said County of Barbour, feloniously, willfully, maliciously, deliberately and unlawfully did slay, kill and murder one Hazel Boudman * * *."
If the statutory form of indictment for murder includes the offense of malicious and felonious assault with intent to maim, disfigure, disable and kill, then the discharge of the defendant under the murder indictment would preclude the State from trying the defendant under the present indictment, for if there be an acquittal of an offense, or a bar having the same effect as an acquittal, which offense necessarily includes within it the commission of a lesser offense, an acquittal of the higher bars a subsequent prosecution for the lesser. The statutory form of indictment for murder does not include the averment of the commission of an assault, and where such is the case the better view would seem to be that the offense of malicious and felonious assault with intent to maim, disfigure, disable and kill, is not included in an indictment for murder in the form prescribed by the statute. Our case ofState v. Lutz,
"The question presented is, can one so indicted be found guilty of felonious assault or assault and battery on such an indictment? In the recent case of State v. Vineyard,
It being apparent from the face of the plea of autrefois acquit that the offenses charged in the two indictments under consideration are distinct offenses, the demurrer to the special plea was properly sustained. *38
Our conclusion is that the lower court ruled correctly when it sustained the demurrer to the special plea of autrefois acquit as being bad on its face; that an indictment for murder in the form prescribed by section 1, of chapter 144, of the Code, does not include the felony described in the indictment herein found under section 9, of chapter 144, of the Code; and that the dismissal of the murder indictment based on the statutory form and containing no averment of an assault, does not preclude the State from trying the defendant under the present indictment for malicious and felonious assault with intent to maim, disfigure, disable and kill, and we so answer the questions certified.
Ruling affirmed.