State v. Justice

I concur in the result, but I do not agree that the case ofNuttallburg Smokeless Fuel Co. v. First National Bank ofHarrisville, 89 W. Va. 438, 109 S.E. 766, is authority for any point decided in this case. In the Nuttallburg case the Court was dealing with the verity rule as applied to an officer's return of service of process and did not in any way discuss or consider the verity of entries made in the law and chancery books of a trial court.

The Nuttallburg case creates a very narrow exception to the rule relative to the verity of an officers return of service, as will be seen from the first point of the syllabus: "Upon a proceeding to vacate a judgment taken by default in a case in which the defendant had no notice of the pendency of the action in any manner or form, the return of the officer indorsed upon the summons is only prima facie evidence of service and may be overthrown by proof of such lack of notice." Moreover, in the body of the opinion in the Nuttallburg case, the following statement is made which, to my mind, confines the application thereof to very narrow limits: "We have attempted in this opinion to draw a distinction in cases of judgment by default upon no notice either actual, presumptive, or constructive; and where there has been notice and a technicality is relied upon, or where the defendant has appeared, and denies service, but has opportunity to defend. In the latter instance we would deny the right to question the return."

In law when a defendant has appeared the writ of summonsis not a part of the record, but may be made so by craving oyer of the writ. Lambert v. Ensign Manuf'g. Co., 42 W. Va. 813,26 S.E. 431; State v. Jarrell, 76 W. Va. 263, 267, 85 S.E. 525;Pancake v. Hite, 105 W. Va. 366, 368, 142 S.E. 523. In the case of Wilson v. Ritz, 96 W. Va. 397, 400, 123 S.E. 63, this Court used the following language: "In default judgments or decrees, the process, including the return, becomes a part of the record; but not so, except in cases of default. New EagleGas Coal Company v. Burgess, 90 W. Va. 541, 111 S.E. 508."

It is thus readily seen that the Nuttallburg case is wholly inapplicable to the question here. In the Nuttallburg case the Court discussed and applied a principle relating to the return of service of a writ of summons which may or may not be a part of the record, and anything said in that case does not support the fifth point of the syllabus in the instant case. Here the question involves an alleged conflict between a record entry reciting that a felony indictment had been returned by the grand jury, and the indictment itself.

Furthermore, I see no occasion for overruling the case ofState v. Whitt, 39 W. Va. 468, 19 S.E. 873, as that case, as I view it, is readily distinguishable from the instant case. In the Whitt case defendant was indicted under a statute reading, in part, as follows: "If any person maliciously * * *, maim, kill, or cause the death of any horse, cattle, or other beast, of another person, of the value of twenty dollars or more, he shall be confined in the penitentiary not less than one nor more than five years; and if of less value than twenty dollars, he shall be confined in jail not more than three months, and fined not more than fifty dollars, in the discretion of the Court. * * *." Chapter 148, Section 25, Acts of the Legislature, Adjourned Session, 1882. The indictment charged that Whitt "* * * did maliciously kill one certain beast, to wit: one steer, of the value of twenty-five dollars, the property of one Vincent Dailey, * * *." The indictment charged sufficient facts to constitute a felony under the statute but failed to incorporate in the indictment that the act of killing the steer was done "feloniously." For that reason the indictment was held to be bad as a charge of felony. It is to be noted that the Court held that the indictment was good for a misdemeanor, but I am doubtful of the correctness of that statement. Even a casual reading of the statute discloses that there were two grades of crime denounced thereby, one being a felony and the other a misdemeanor. The allegations of the indictment charged the higher offense of felony, and since the grade of the crime turned on the value of the beast which was killed, and the value of the beast allegedly killed by Whitt was twenty-five dollars, it is reasonable to say that no misdemeanor was charged. Therefore, the Whitt case could certainly be supported upon the theory that the charge in the indictment, not being good as a felony and being uncertain as to a misdemeanor, should be overcome by the statement in the record denominating the indictment as being one for a felony.

In the instant case the record recites that defendant was indicted for a felony, but, on referring to the indictment, which is also as much a part of the record as the recital, it is clear that each of the counts in the indictment plainly charges a misdemeanor. There may be a conflict between the recital in the record and the charge in an indictment, but upon reason and authority, the indictment should be given credence rather than recitals in the record. Therefore, I would consider the error in the recital as one of inadvertence, the correction therefor being also found in the record, to-wit: the indictment, which is the subject of the recital.

Convinced that the Nuttallburg case is erroneously cited in the majority opinion as authority for a proposition for which it does not stand, and that the Whitt case should not be overruled, it being distinguishable from the instant case, I do not agree with the majority opinion in those respects. Hence this criticism. Otherwise I concur.

I am authorized to say that Judge Kenna joins in this concurrence.