Watts v. State , 5 W. Va. 532 ( 1872 )

Moore J.

This case is before us on a writ of error to the judgment of the circuit court of Monroe county, on a verdict convicting the defendant, whereby he was sentenced to imprisonment in the penitentiary for the term of two years.

The indictment consisted of two clauses. The first charged that “John Lee Randolph and Price Pleasants, on the 19th day of September, 1871, about the hour of ten o’clock in the night of that day, feloniously and burglariously did break and enter into the dwelling house of G. D. Perry, situated in the said county, with intent to make an assault upon one J. W. Saunders then and there living, and him the said J. W. Saunders, to then and there maliciously shoot, stab, cut and wound, with intent to maim, disfigure, disable and kill him, the said J. W. Saunders.”

The second clause charged that Lewis F. Watts, of the said county, before the said felony and burglary was committed in form aforesaid, to-wit: on the 19th day of September, in the year aforesaid, in the county aforesaid, did feloniously counsel, procure, aid and abet the said John Lee Randolph and Price Pleasants, to do and commit said felony and burglary in manner and form aforesaid, against the peace, <&c.”

The defendant upon the trial of the cause took five bills of exceptions to the rulings of the court, which make apparent the errors complained of, as especially designated by the learned counsel in his brief of assignment of error.

The rule governing the production of evidence is well settled, “ that the evidence offered must correspond with the material and necessary .allegations, and be confined to the point in issue.” It is stated by Mr. Greenleaf, (1 Greenleaf’s Evid. 951 a.) “ It is not necessary, however, that the evidence should bear directly upon the issue. It is admissible, if it tends to prove the issue, or constitutes a link in the chain of proof; although, alone, it might not justify a verdict in accordance with it. Nor is it necessary that its relevancy should appear at the time when it is offered; it being the usual course to receive at any proper and convenient stage of the trial, in the discretion of the Judge, any evidence which the counsel shows will be rendered material by other evidence, which he undertakes to produce. If it is not subsequently thus connected with the issue, it is to be laid out of the case.” And in section 52, he adds: “This rule excludes all evidence -of collateral facts, or those which are incapable of affording any reasonable presumption or inference, as to the principal fact or matter in dispute; and the reason is, that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice, and mislead them ; and moreover, the adverse party having had no notice of such a course of evidence is not prepared to rebut it.” These principles are maintained by other standard text-writers, and seem to be sustained by undoubted authority as the rule governing the production of evidence, which is in keeping with the spirit of the Federal and State Constitutions.

The constitution of this State declares, that “ the accused shall be informed of the character and cause of the accusation,” (Art. II, s. 8) : The Federal Constitution declares he “ shall be informed of the nature and cause of the accusation.” (U. S. Con. Art. VI.) In this case the indictment found against the prisoner, informed him that he was charged as accessory before the fact, in this, that he did feloniously counsel, procure, aid and abet John Lee Randolph and Price Pleasants; feloniously and burglariously to break and enter into the dwelling house of G. D. Perry, with intent to make an assault' upon one J. W. Saunders, to then and there shoot, stab, cut and wound the said Saunders with intent to maim, disfigure, disable and kill said Saunders.

This was the accusation against him, and for no other of-fence could he be tried on this indictment, and nothing should' have been given in evidence which did not directly tend to the proof or disproof of the matter in issue. (1 Wharton Crim. Law § 647.) In the section just noted, Mr. Wharton citing authority, states that, “Evidence of a distinct, substantive offence, cannot be admitted in support of another offence.”' “ So if, the accessory order or advise one crime, and the principal intentionally commit another; as, for instance, to burn a house, .and instead of that he committed a larceny; orto pommit a crime against A.; instead of so doing, he commit the same crime against B., the accessory will not be responsible.” '(Idem, § 134.)

“ If the crime by the principal felon was committed under the influence of the flagitious advice of the other party, and the event, though possibly falling out beyond the original intention of the latter, was, nevertheless, in the ordinary course of things a probable consequence of that felony, he is guilty of being accessory to the crime actually committed. But if the principal, following the suggestions of his own heart, wilfully and knowingly committed a felony of another kind, on a different subject, he alone is guilty.” (3 Greenleaf Evid. § 50.) And if the principal totally and substantially departs from his instructions, as if, being solicited to burn a barn, he moreover commits a robbery while so doing, he- stands single in the latter crime, and the other is not held responsible for it as accessory. (3 Greenleaf Evid. § 44.)

Has the trial of this cause been governed by these .principles ? I think not. It was certainly improper to admit the testimony of Perry and wife as to the rape, because that was a distinct substantive offence from that charged in the indictment ; (1 Wharton’s Crim. Law § 647,) and had no connection whatever with the felony charged, because it was a total and substantial departure from that instructed, (3 Green-leaf Evid. § 44,) and tbe defendant could not be held responsible as accessory thereto. (Idem.) The admitting of such testimony being evidence of a crime ever shocking to civilized society, was well calculated “to draw away the minds of the jurors from the points in issue, and to excite prejudice and mislead them,” and thus prevent a fair, impartial verdict. The exceptions taken in admission of that evidence, should therefore have been sustained, and it was error in overruling them.

As to the fourth exception, I do not discover error. The state asked the witness, “What occurred that'evening about dark, between I. W. Saunders and Lewis F. Watts.” ' The witness testified, “ that on the evening the offense charged in the indictment was committed, about dark, he was passing the store of Mr. Watts, in a wagon, about one mile from his (witnesses’) house; that I. W. Saunders was in the wagon with him ; that Watts and Saunders got into an altercation, that Watts struck at Saunders with a knife, and Saunders jumped out of the wagon, and threw a stone at Watts.” It seems to me that the evidence was properly admissible to show “ the existence of a motive likely to instigate the defendant to the commission of the offense in question. (1 Wharton’s Crim. Law, § 635;) and therefore the court did not err in the ruling.made known by the fourth bill of exceptions.

The evidence was plainly insufficient to warrant the verdict.

The judgment should be reversed, verdict set aside, and cause remanded for a new trial.

The other judges concurred.

JüDGMENT REVERSED.