Public-domain · open source

44 W. Va. 315

State v. Cross

West Virginia Supreme Court

Decided March 19, 1898

West Virginia Supreme Court · decided 1898-03-19

<p>1. Criminal Law — .Pleas of Former Acquittal, or Conviction — Sufficiency of Pleas.</p> <p>Pleas of former acquittal and former conviction are treated with liberality as to their structure, not requiring- the certainty of pleas in abatement, or even of indictments. They must, however, state sufficient facts to show the party entitled to those defenses. (p. 317).</p> <p>2. Criminal Law — Pleas of Former Acqtdttal or Conviction — Sufficiency of Pleas — Record.</p> <p>Pleas of former conviction or acquittal must' state the offense involved in the former trial, its identity with that involved in the second prosecution, and the identity of the person of the accused, with the person before tried, and must vouch the record of the former trial, (p. 317).</p> <p>3. Criminal Law — Pleading—Former Trial.</p> <p>• Where a former conviction or acquittal was on the same indictment still being- further prosecuted, no plea of former conviction or acquittal is necessary. Objection to being- further tried, or a motion in arrest of judgment, gives the accused the benefit of the former acquittal or conviction. Otherwise where former trial was upon another indictment in the same or other court, (p. 319).</p> <p>4. Criminal Law — Murder— Voluntary Manslaughter — New Trial.</p> <p>Where a party is tried upon an indictment for murder, and found guilty of voluntary manslaughter, and obtains a new trial, though the verdict is silent as to murder, he cannot be tried again for murder. (p. 319).</p> <p>5. Criminal Law — Murder.</p> <p>Can one found guilty of murder in the second degree be tried again for murder in the first degree? Not now decided, (p. 321).</p> <p>6. CRIMINAL Law — Felony—New Trial.</p> <p>If one convicted of felony asks and obtains a new trial, the former conviction does not acquit him or prevent his retrial, as he waives the jeopardy of the former trial. (p. 322).</p> <p>7. Criminal Law — Pleading—Jurisdiction of Court — Former Trial.</p> <p>In order that a plea of former conviction or acquittal shall avail as a bar to further prosecution, the court must have been one with authority and jurisdiction to try the party, (p. 321).</p> <p>8. Special Judge — Order—Record.</p> <p>Chapter 49, Acts 1897, prohibits the election of a special judge, where the regular judge is present holding the court, unless the court by the regular judge enters of record an order for such election, reciting- the facts specified in the act Where the record shows the absence of such order, the special judg-e has no authority or jurisdiction, and his proceedings are void. (p. 322).</p> <p>9. Statutes— Clerical Errors — Legislature.</p> <p>Mere clerical errors in a statute will be disregarded, or read as corrected, where the true intention of the legislature is manifest from the statute, (p. 323).</p> <p>10. Statutes — Amendment of Code — Clerical Errors.</p> <p>Where a statute amending a section of a given chapter of the Code refers to the section by the wrong number, and it is manifest from the title and body of the statute that another section was intended to be amended, the error as to the number of the section will be disregarded, and the statute will be applied to amend the proper section, (p. 324).</p> <p>11. Special Judge — Election.</p> <p>Chapter 49, Acts 1897, amends and re-enacts section 11 of chapter 112 of the Code of 1891, and not section 2 of said chapter 112. Said section 2 is not repealed or affected by said chapter 49. (p. 325).</p>

Relies on Brotherton v. . the People

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1898-03-19

How this case has been cited

Cited by 32 later decisions — most recently June 2005 · most notably 138 W. Va. 901 - State Ex Rel. Lovejoy v. Skeen (1953), State v. Prater (1902)

32 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1ON REHEARING.

Brannon, President:

¶2A petition for rehearing for the first time makes the point that it does not appear that the indictment has the indorsement, “A true bill,” The record does not show that the indictment had not such indorsement. It says that the grand jury “reported an indictment against Frank Cross for a felony, £A true bill. ’ ” This imports that it has such indorsement. The absence of a statement that there was such endorsement does not prove that there was not. It in effect says that there was. Brotherton v. Peo*331ple, 75 N. Y. 159; Whart. Cr. Pl. & Prac. § 369. But the record says the grand jury declared it “A true bill.” That is enough. Judge Dade in the Burgess Case, 2 Va. Cas. 487; White's Case, 29 Grat. 824; Price's Case, 21 Grat. 846. There is nothing of any substance in the quaere on this point in State v. Heaton, 23 W. Va., 773. If there were anything in the point, it comes too late after plea. Burgess' Case, supra; Whart. Cr. Pl. & Prac. § 369. A later certificate of the clerk shows there was such indorsement. There is nothing in the point that, at a term when a continuance was entered, the record does not show that prisoner was set to the bar. The order says the case was continued, and “thereupon” prisoner and others acknowledged a recognizance, thus showing he was present, and, moreover, it was a mere continuance not opposed. If it may be inferred from the record that the prisoner was present, that is enough, without formal statement of his presence. Lawrence's Case, 30 Grat. 845. No formal arraignment is necessary, as section 2, chapter 159, Code, abolished it.

¶3Affirmed.