State v. Pietranton

• Decision Date: 23 November 1954
• Docket Number: No. 10661,10661
• Citation: 140 W.Va. 444,84 S.E.2d 774
• Parties: STATE of West Virginia, v. Frank A. PIETRANTON.
• Court: West Virginia Supreme Court

Page 774

84 S.E.2d 774

140 W.Va. 444

STATE of West Virginia, v. Frank A. PIETRANTON.

No. 10661.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 14, 1954.

Decided Nov. 23, 1954.

Syllabus by the Court.

1. The State constitutional provision denying the State the right to twice place in jeopardy a defendant in a criminal prosecution has no application where the offense for which a defendant is being tried is a different offense than the one involved in a former prosecution. Neither has that provision any application where a jury has been discharged in a former trial because of a fatally defective indictment.

2. The principle of law usually followed in this State relating to the 'law of the case' has no application in the trial of a criminal offense where the charge contained in the indictment is a different offense than the one contained in the former indictment, and has no connection therewith except that the different charges may have arisen from the same factual situation.

3. 'On a common law indictment for larceny, evidence of embezzlement is admissible and, on it, there may be a conviction of the latter offense, if the evidence is sufficient.' Point 1, Syllabus, Swick v. Bassell, 77 W.Va. 78 .

4. 'To warrant a change of venue in a criminal case, there must be a showing of good cause therefor, the burden of which rests upon defendant, the only person who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist at the time application for a change of venue is made. Whether, on the showing made, a change of venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon will not be disturbed, unless it clearly appears that the discretion aforesaid has been abused.' Point 2, Syllabus, State v. Wooldridge, 129 W.Va. 448 .

5. 'The granting or the refusing of a bill of particulars in a criminal case is in the sound discretion of the trial court; and its refusal to require a more specific bill of particulars is not ground for reversal unless it is clear that such refusal results in prejudice to the defendant which amounts to an abuse of sound discretion.' Point 2, Syllabus, State v. Hudson, 128 W.Va. 655 .

6. 'A trial court in ruling on a motion for a continuance is governed by a sound discretion, and, unless it clearly appears that such discretion was abused, and that movant was prejudiced thereby, denial of a continuance does not constitute reversible error.' Point 1, Syllabus, State v. Simmons, 130 W.Va. 33 .

7. The action of a trial court in overruling a motion of a defendant for a mistrial, made in a felony prosecution, based on allegedly prejudicial statements of a prospective juror made on his voir dire in the presence of jurors who had been qualified, will not constitute reversible error unless it clearly appears that the defendant was prejudiced by such statements.

8. 'Whether the State in a criminal proceeding may introduced further evidence after a defendant has rested his case is a matter within the sound discretion of the trial court, and the exercise of that discretion will rarely be cause for reversal.' Point 2, Syllabus, State v. Fitzsimmons, W.Va. .

9. 'It is error for the Circuit Court to refuse to set aside a verdict and grant a new trial, in a felony case, when the State fails to prove at the trial that the alleged offense was committed within the jurisdiction of the court.' Point 2, Syllabus, State v. Mills, 33 W.Va. 455 .

10. Where a city is situated partly in one county and partly in another county, courts may not take judicial notice that a certain building or place of business, located within the corporate boundaries of such city, is located within either of such counties.

11. In the trial of a criminal offense, the presumption of innocence existing in favor of a defendant continues through every stage of the trial until a finding of guilty by the jury.

12. The reading of an instruction to a jury, in the trial of a criminal case, to the effect that the presumption of innocence of the defendant vanishes at any stage of the trial before a verdict of guilty, constitutes reversible error.

13. 'A bad instruction is not cured by a good one given to the jury, and with which it is in conflict.' Point 2, Syllabus, State v. Garner, 97 W.Va. 222 .

14. An instruction should be based on evidence in the case, and it is not error to refuse an instruction, though it state correct principles of law, where there is no appreciable evidence to support it.

15. 'Where the jury are instructed upon the law relating to a particular subject, it is not error to refuse to give other instructions to the same effect, as the court need not repeat instructions already substantially given.' Point 4, Syllabus, State v. Dillard, 59 W.Va. 197 .

C. Lee Spillers, James R. Wilkin, Wellsburg, for plaintiff in error.

John G. Fox, Atty. Gen., Fred H. Caplan, Asst. Atty. Gen., for defendant in error.

GIVEN, President.

Frank A. Pietranton was indicted in the Circuit Court of Brooke County, November 3, 1952. The indictment charged that defendant 'on or about the 8th day of December, 1949, in the said County of Brooke, United States Currency of the value of $2833.33, of the money, goods, effects and property of one Eugene James Iacuone, feloniously did steal, take and carry away, against the peace and dignity of the State.' On the first trial had on this indictment, commenced on December 15, 1952, the jury were unable to agree on a verdict. On the second trial thereon, commenced June 22, 1953, defendant was found 'guilty as charged in the indictment'. He was sentenced to the West Virginia Penitentiary for a period of not less than one nor more than ten years. This Court granted a writ of error.

The $2,833.33 alleged to have been stolen is the fund represented by the check involved in the case of State v. Pietranton, W.Va., 72 S.E.2d 617, and in the case of Iacuone v. Pietranton, W.Va., 77 S.E.2d 884. Detailed statements of pertinent facts are made in those cases. We state here only such facts as are believed to be essential to an understanding of the questions to be considered.

Defendant, an attorney at law, was employed by Eugene James Iacuone to prosecute an action on behalf of Iacuone for damages resulting from an automobile accident, whereby Iacuone lost a leg. The employment was on a contingent fee basis, defendant contending that he was to receive fifty per cent of any recovery, and Iacuone contending that the fee was to be one third of any recovery had without trial. Settlement of the claim, in the amount of $18,500, was effected without trial. Pietranton employed another attorney to assist him in the prosecution of Iacuone's claim. The attorney so employed apparently understood that he was to receive one half of any fee, while Pietranton contends that the attorney so employed was to receive only one half of one third of any recovery. The sum of $2,833.33 represents the amount of the contingent fee which Pietranton claims was due him over and above the amount paid by him to the attorney so employed. In making disbursement of the $18,500, Pietranton drew a check on his own account, payable to Eugene James Iacuone, in the amount of $2,833.33, and obtained Iacuone's indorsement thereon at the time of delivery of a check to Iacuone for $9,000.01, claimed by defendant to be Iacuone's proportionate share of the recovery. The sum represented by the check for $2,833.33 is the United States currency alleged in the indictment in the present case to have been stolen by defendant. Other pertinent facts will appear in the consideration of the several questions involved.

The indictment of defendant involved in the previous case, mentioned above, alleged that defendant, by means of fraudulent and false pretenses, did then and there 'feloniously and unlawfully obtain the said paper writing of value, to-wit: the said negotiable instrument, commonly called a 'bank check' * * *'. On writ of error to this Court is was held that defendant did not, by obtaining the indorsement of Iacuone, obtain any property which could be the subject of larceny. Based on that holding, defendant filed a special plea and an amended special plea, alleging facts contended by him to be sufficient to show that the former adjudication constituted a bar to any further prosecution by the State concerning the transaction. The trial court sustained a demurrer to the amended special plea.

We are of the opinion that the action of the trial court in sustaining the demurrer to the amended special plea was correct, whether the plea be considered as a plea of autrefois acquit, as a plea raising a question as to the 'law of the case', or as a plea as to the sufficiency of the facts alleged in the indictment to constitute an offense. Code, 61-3-20, under which the indictment in the instant case was drawn, provides: 'If * * * any agent, clerk or servant of any firm or person, or company or association of persons not incorporated, embezzle or fraudulently convert to his own use, bullion, money, bank notes, drafts, security for money, or any effects or property of any other person, which shall have come into his possession, or been placed under his care or management, by virtue of his office, place or employment, he shall be guilty of the larceny thereof. * * *' The indictment in the first case was under a different statute, Code, 61-3-24. The charge there was that defendant obtained a check through false representations which, under the statute, constitutes larceny. In other words, the offense charged in the indictment in the instant case is a wholly different offense from that charged in the former indictment. In State v. Taylor, 130 W.Va. 74, 42 S.E.2d 549, 551, this Court held: '2. The provision of Article III, Section 5 of the Constitution of this State which forbids that any person, in any criminal case, shall be twice put in jeopardy of life or liberty for the same...