State Of West Va. v. Criss, (No. 9338)

CourtSupreme Court of West Virginia
Citation125 W.Va. 225
Decision Date15 December 1942
Docket Number(No. 9338)
PartiesState of West Virginia v. George W. Criss

125 W.Va. 225

State of West Virginia
George W. Criss

(No. 9338)

Supreme Court of Appeals of West Virginia.

Submitted October 20, 1942.
Decided December 15, 1942.

[125 W.Va. 225]

1. Indictment

An indictment which contains superfluous and improper matter which is calculated to reflect injuriously upon the defendant on his trial is not bad on demurrer or motion to quash, provided such matter may be stricken or deleted therefrom in such manner as actually to withhold it from the jury.

2. Indictment

The allegation in an indictment for grand larceny that the property charged to have been stolen is of "the approximate value of Fifty Dollars, ($50.00)" renders such indictment fatally defective, on demurrer or motion to quash.

Error to Circuit Court, Harrison County.

George W. Criss was convicted of grand larceny and sentenced as one having been twice previously convicted of felonies and sentenced to the penitentiary, and he brings error.

Reversed and dismissed.

John C. Southern, for plaintiff in error. William S. Wysong, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for defendant in error.

Rose, Judge:

Upon a conviction of grand larceny, accompanied by a finding that he had twice before been sentenced to the penitentiary in the United States, the Criminal Court of Harrison County sentenced George W. Criss to the penitentiary for life. The Circuit Court of that county declined to review the case, and we granted this writ of error.

The indictment charged that the defendant "George W. Criss, alias George LeMarr, alias T. H. Mitchell, alias

[125 W.Va. 226]

Joseph Harry Mitchell" had been theretofore, in the United States, indicted, arraigned, tried, convicted and sentenced on three prior felonies, following which he, on

the________day of February, 1941, in the County of Harrison

"one reel of approximately three hundred feet of No. 2 parallel duplex wire cable wound on simplex wood reel of the approximate value of Fifty Dollars, ($50.00), of the goods, chattels, effects and property of Consolidation Coal Company, a corporation, unlawfully and feloniously did steal, take and carry away, * * *."

To this indictment, the defendant interposed a demurrer based on eleven grounds, and at the same time filed a motion to quash the indictment, assigning the same grounds. Both the demurrer and motion to quash were overruled. After the denial of a motion for a continuance, a trial to a jury was had, resulting in a verdict of "guilty as charged in the within indictment". A motion to set aside the verdict, assigning eighteen grounds, and a motion in arrest of judgment based upon three grounds, were made and overruled, and the defendant was sentenced to the penitentiary for the term of his natural life.

An application made to the Circuit Court of Harrison County for a writ of error, assigning eleven grounds, was denied, after which, in a petition to this Court, based on fifteen alleged errors, the case was brought here on writ of error. Of this multitude of assigned errors strewn throughout the record, most appear to have been abandoned, some insisted upon seem without merit, but others require serious consideration.

It is at once apparent that there must be a reversal in this case. The record before us discloses that upon the trial, copies of the former indictments in Webster County and in New Mexico were read to the jury. This alone constitutes reversible error. State v. Stout, 116 W. Va. 398, 180 S. E. 443. Also, instruction No...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT