junctive instead of the conjunctive. If this were an open question, I am disposed to think there would be much force in it. But in Morgan's case (7 Grat. 592), it was held that it was no error to use the word "or" (as in this case), instead of the word "and," in describing the various kinds of liquors and drinks charged to have been sold in the indictment. That case, therefore, must be conclusive of the present case, and the judgment must accordingly be affirmed.1 Judgment affirmed. The other judges concurred. 1 The case of Morgan v. Commonwealth, 7 Grat. 592 (1850), is as follows: "At the March Term for 1848, of the Circuit Court of Chesterfield County, Peter K. Morgan was indicted, for that he, on the 15th of February, 1848, at the county, &c., without a license, did sell by retail, to be drank in his house, rum, wine, brandy, or other spirituous liquors, to be drank where sold, &c. "The defendant demurred to the indictment, on the ground that the charges were laid in the disjunctive. But the court overruled the demurrer. The defendant then pleaded not guilty,' and on the trial demurred to the evidence; the commonwealth joined in the demurrer. Whereupon the jury found a verdict of guilty, subject to the demurrer to evidence. The evidence consisted of the testimony of a single witness, who deposed that on the 15th of February, 1848, he and John Perry drank spirits at the house of the defendant; which said spirits were called for by Perry, and by him paid for, the purchase having been made of, and the payment made to, the defendant. "The court gave judgment upon the demurrer to evidence against the defendant, for a fine of 30 dollars and the costs. Whereupon he applied to this court for a writ of error, which was allowed. By the Court. The judgment is affirmed." This is certainly not a well considered case. The attention of the court was probably only called to the question of the demurrer to the evidence, and the objection to the alternative pleading passed by inadvertence. That this must have been so will be seen by a reference to Angel v. Commonwealth, 2 Virginia Cases, 231 (1820), where the General Court of Virginia decide that where a statute affixes a penalty to acts stated in the statute in the disjunctive, it is proper to charge the acts in the indictment in the conjunctive. To this case the reporter has added a note giving the English authorities, and yet this case is not referred to in Morgan v. Commonwealth. It is one of the fundamental rules of pleading that the "pleadings must not be in the alternative." Stephen on Pleading, ch. 2, § 5, rule 4. This is an absolute rule without exception. The best argument which can be made against the rule, in one of its applications, is that made by Att'y. Gen. Heiskell of Tennessee, in the case of The State v. Green, 1 Crim. Law Rep. 459 (3 Heisk. 131). But the rule is as thoroughly established as any principle of law can be. It is well illustrated in the case of Com. v. Grey, 2 Gray (Mass.), 501 (1854), which is as follows: "A complaint, made to a justice of the peace, alleged that the defendants, on the 18th of June, 1854, at Canton, without any authority or license therefor duly had and obtained according to law, did sell spiritu ous or intoxicating liquor to one Patrick G. White,' &c. The defendants, being found guilty by the justice, appealed to the Court of Common Pleas, and there pleaded that they would not contend with the commonwealth, and this plea was received by the court. They then moved in arrest of judgment, because said complaint does not charge the violation of any statute of this commonwealth substantially in accordance with the requirements of law.' Mellen, C. J., being of opinion that the question of law arising upon this motion was so doubtful as to require the decision of this court, reported the case, with the consent of the defendants. Metcalf, J. It is a general rule, that an indictment, information, or complaint must not charge a party disjunctively, so as to leave it uncertain what is relied on as the accusation against him. 2 Hawk. c 25, § 58; 1 Chit. Crim. Law, 231; 1 Stark. Crim. Pl. (2d. ed.) 245. Thus an indictment which averred that S. made a foreible entry into two closes of meadow or pasture, was held to be bad. Speart's case, 2 Rol. Ab. 81. So of an information which alleged that N. sold beer or ale without an excise license. The King v. North, 6 Dowl. & Ryl. 143. See also Rex v. Morley, 1 Y. & Jerv. 221; Ex parte Pain, 5 B. & C. 251 ; Ker v. Sadler, 2 Chit. R. 519; Davy v. Baker, 4 Bur. 2471. "When the word 'or' in a statute is used in the sense of 'to wit,' that is, in explanation of what precedes, and making it sig nify the same thing, a complaint or indictment which adopts the words of the statute is well framed. Thus it was held, in Brown v. Commonwealth (8 Mass. 59), that an indictment was sufficient which alleged that the defendant had in his custody and possession ten counterfeit bank bills, or promissory notes, payable to the bearer 1. The record of the finding of an indictment under the statute for maliciously shooting, stabbing, cutting, &c., is as follows: "An indictment against Charles L. Crookham; malicious stabbing: a true bill," and is held to be sufficient. 2. A count in an indictment under the statute against malicious shooting, &c., in the language of the statute, is held to be sufficient. 3. Under the statute, Code, p. 718, sec. 7, the court may discharge the jury when it ap pears that they cannot agree in a verdict, without the consent of the prisoner. 4. Two witnesses testified that they heard the deceased calling for help (after dark), and on inquiring of him what was the matter, he answered, "that somebody was killing him, and was cutting him with a knife," and said that it was the prisoner, naming him; and also answered, the prisoner, naming him, "has stabbed me; he has killed thereof, and purporting to be signed in behalf of the president and directors of the Union Bank, knowing them to be counterfeit, and with intent to utter and pass them, and thereby to injure and defraud the said president and directors; it being manifest from St. 1804, c. 120, § 2, on which the indictment was framed, that' promissory note' was used merely as explanatory of bank bill,' and meant the same thing. So in the State v. Gilbert (13 Vt. 647), an information was held sufficient which alleged that the defendant feloniously stole, took, and carried away a mare, of a bay or brown color;' the court saying that the colors named in the information were the same. And if spirituous liquor and intoxicating liquor were the same, and the word 'intoxicating' had been used in St. 1852, c. 322, as a mere explanation of the word 'spirituous,' the complaint in the present case would have been rightly drawn. But the words are not synonymous. All spirituous liquor is intoxicating yet all intoxicating liquor is not spirituous. In common parlance, spirituous liquor means distilled liquor; and such, we believe, is its meaning in the statute. Fermented liquor, though intoxicating, is not spirituous. "A complaint or indictment on the statute should charge the defendant, either with selling spirituous liquor, or with selling intoxicating liquor. The latter form is usually adopted; and it is well settled that it is a proper form, and that proof of the defendant's having sold either spirituous liquor or intoxicating liquor, as well as proof of his having sold both, will support the indictment. 1 East P. C. 402; Angel v. Commonwealth, 2 Virg. Cas. 231; The State v. Price, 6 Halst. 203. "As the complaint against these defendants leaves it uncertain whether they are charged with having sold spirituous liquor, or intoxicating liquor which is not spirituous, we must hold it, upon the authorities above cited, to be insufficient to sustain a judgment. Judgment arrested." See to the same effect State v. Colwell, 3 R. I. 284. In 1 Wharton's Crim. Law, §§ 294, 295, the authorities are collected at large. As has been already said, the rule that pleadings must not be in the alternative is an absolute rule without an exception. A passage from Lord Hale is sometimes cited to show that there are exceptions to the rule. Hale says (1 Pleas of Crown, 535), "But an indictment of a robbery in vel prope altam viam regiam, though in the disjunctive, is usual at Newgate; for if it be either in or near it, though an indictment ought to be certain, yet this is not the substance of the indictment, nor that which makes the crime, but only to ascertain the court as to the point of clergy to serve the statute." But with all respect for Lord Hale this is only an apparent, not a real exception; the allegation is disjunctive in form, but not in substance. By 23 Hen. 8 c. 1, it is enacted "That no person or persons which shall be found guilty for rob bing of any person or persons in or near about the highways shall be admitted to the benefit of clergy." Now in this statute the phrase "in or near about the highway" denotes a certain tract of land upon which, when a robbery is committed, the offender is ousted of his clergy. Suppose “near about a highway" to mean within ten rods, or any other determinate distance from the thread of the highway- that it means some determinate distance to be fixed by court or jury is obvious the allegation in the indictment, then, that a robbery was committed in, vel prope, altam viam regiam, is as direct and positive an allegation as, and no more an alternative allegation than, the allegation that the robbery was committed "within ten rods of the thread of the highway," would be. There is now no such offence known to the law as highway robbery. The expression highway robbery, to distinguish a robbery committed on the highway from other robberies, arose from the fact that a robbery committed on or near the highway deprived the offender of the benefit of clergy. me; for God's sake send for the doctor," and it was not error in the court below to refuse to exclude the words which included the prisoner's name, as the declarations of the deceased were a part of the res gesta and admissible. 5. It was not error to exclude testimony offered by the prisoner, to the effect that another and a different person from himself had made threats to kill the deceased, just before the commission of the offence with which he was charged, and that immediately after the offence such other person left the county and has not since been heard from. 6. A witness is asked if, "after the deceased declared he was dying, and while he was dying, did he make any declaration as to how he received the wounds, and by whom they were inflicted; if so, what those declarations were?" To which the answer was, None, except he said that it was hard to die by the hand of another and leave his family." Held, I. It was error to admit such declaration in evidence as part of the res gesta because too remote from the transaction. II. It could not be received as a dying declaration, because the death of the deceased is not the subject of the charge, and the circumstances of the death are not the subject of the dying declarations. 7. If a defendant fails to appear according to the terms of his recognizance, he cannot claim a discharge by reason of three regular terms having been allowed to pass without a trial. THIS case arose in Mason County. The indictment was found in February, 1869. A trial was had in May, 1869, and the jury failing to agree, were discharged. A further trial was had in September, 1870, and the defendant was found guilty and sentenced to two years' confinement in the penitentiary. The first count in the indictment, which was held to be sufficient, is as follows: "The jurors of the State of West Virginia, in and for the body of the county of Mason, and now attending said court, on their oath present that Charles L. Crookham, on the day of November, 1868, in the said county, in and upon one Samuel Finimore did make an assault, and him, the said Samuel Finimore, feloniously and maliciously did stab, cut, and wound, with intent him, the said Samuel Finimore, then and there to maim, disfigure, disable, and kill, against the peace and dignity of the State of West Virginia." All other points at issue will be found amply stated in the opinion of Maxwell, J. The defendant brought the case here by writ of error. D. Polsley & Knight, for the plaintiff in error. The Attorney General, for the state. MAXWELL, J. Crookham was convicted in the Circuit Court of Mason County, upon a charge of feloniously and maliciously stabbing, cutting, and wounding one Samuel Finimore, with intent to maim, disfigure, disable, and kill, and was sentenced to the penitentiary for two years, and the case comes here to be reviewed on writ of error. The record shows that the finding of the indictment by the grand jury was entered upon the record of the court, “An indictment against Charles L. Crookham; malicious stabbing: a true bill." There was a motion made to quash the indictment, because there was not a proper entry made of the finding thereof by the grand jury, which motion was overruled, and this is the first ground of error assigned here. It is insisted that the entry should have been upon the record, an indictment for "a felony." If any person maliciously shoot, stab, cut, or wound another, with intent to maim, disfigure, disable, or kill, he commits a felony. All malicious stabbings are felonies, but all felonies are not malicious stabbings. The words "malicious stabbings," used in the record of the finding of the indictment, much more nearly indicate the character of the offence charged in the indictment than the word "felony " would, so that the court did not err in refusing to quash the indictment for the supposed defect in the record. The second ground of error assigned is, that the court erred in refusing to quash the first count in the indictment. The count is in the precise language of the statute, and is sufficient. The third and fourth causes of error assigned are, that a former jury had been impanelled to try the accused, which jury was discharged without his consent, and that he could not be tried again on the same indictment. The counsel for the accused, to maintain this assignment of error, cites the case of Williams v. The Commonwealth (2 Gratt. 567), in which case it was decided by the General Court that, on a trial for a felony, the court had no authority to discharge the jury without the consent of the prisoner, merely because the court was of opinion that the jury could not agree. This case was decided at the December Term, 1845, of the court, and it cannot be doubted, was decided correctly as the law then was. But the General Assembly of Virginia very soon thereafter passed an act to the effect that, in any criminal case, the court might discharge the jury when it appeared they could not agree in a verdict. The provision is found in our Code, p. 718, sec. 7, in these words: "In any criminal case the court may discharge the jury when it appears that they cannot agree in a verdict." The order of the court states that the jury, being unable to agree upon a verdict, were discharged. Unless the provision of the Code just quoted is to be disregarded, the court committed no error in discharging the jury without the consent of the prisoner. The fifth cause assigned as error is the same as the first, in a different form. The eighth ground assigned as error is in allowing the evidence excepted to by the prisoner, and set out in the second bill of exceptions, to go to the jury as part of the res gesta. The evidence referred to is that of Andrew Ferguson and William Ferguson. Both of these witnesses speak of what occurred at the time when it is alleged the injury was inflicted upon Finimore by accused. Andrew Ferguson says he heard Finimore calling for help. The witness says he called to Finimore to know what was the matter. He answered that somebody was killing him, and was cutting him with a knife, and said "it was Charles Crookham." William Ferguson says he heard Finimore calling several times; he asked him what was the matter. He answered that "Charles Crookham has stabbed me, he has killed me; for God's sake run for the doctor." The accused moved the court to exclude from the jury the words "it was Charles Crookham," in the evidence of Andrew Ferguson, and the words, "he said Charles Crookham has stabbed me, he has killed me," in the evidence of William Ferguson; but the court overruled the motion, and allowed the evidence to go to the jury. These declarations are part of the res gestæ, and as such are clearly admissible in the evidence. Hill's case, 2 Grattan, 594. It is claimed that it was error to refuse the accused to prove that another and different person from himself had made threats to kill Finimore just before the commission of the offence with which he was charged, and that immediately after the offence such other person left the country, and has not since been heard from. So far as appears, this evidence was not pertinent to any inquiry before the jury, and so far as is apparent, was properly excluded. The sixth and seventh grounds of error assigned relate to the question asked Mrs. Finimore as to the dying declarations of Finimore, and her answer to that question. Mrs. Finimore, after giving evidence which was not objected to and which was not objectionable, in which she states that her husband was dead, and that she had had a conversation with him just before his death, when he was conscious he was dying, was asked by the attorney for the state the following question: After Samuel Finimore declared he was dying, and while dying, did he make any declaration as to how he received the wounds, and by whom they were inflicted; if so, state what those declarations were? To which question the witness made answer: None, except he said to his sister that it was hard to die by the hand of another and leave his family. This declaration could not be admitted in evidence as part of the res gesta because too remote from the transaction. It could not be received as a dying declaration, because the death of the deceased is not the subject of the charge, and the circumstances of the death are not the subject of the dying declarations. 1 Greenl. on Ev. sec. 156; Wilson v. Boesem, 15 Johnson, 286; The King v. Mead, 9 Eng. Com. Law, 196. The court committed an error in refusing to exclude the evidence of the declarations. It is not easy to see any effect the evidence could have had on the jury, but as it may have had some influence, the judgment will have to be reversed. It is claimed for the accused that he is entitled to be discharged because three regular terms of the court were allowed to pass without a trial. The terms are alleged to be the September Term, 1869, and February and May Terms, 1870. It appears from the record that at the September Term, 1869, the defendant appeared in court and entered into recognizance to appear at the then next term of the court. At the February and May Terms, 1870, of said court, the accused failed to appear in discharge of his recognizance, so far as appears from the record. One of the conditions to entitle him to his discharge is that he shall not take advantage of his failing to appear according to his recognizance. The accused is not entitled to be discharged, and the cause will have to be remanded for a new trial to be had. BERKSHIRE P., concurred. Judgment reversed, and case remanded. |