State Of West Va. v. Mullen Ax
| Citation | 124 W.Va. 243 |
| Decision Date | 07 April 1942 |
| Docket Number | (No. 9256) |
| Court | Supreme Court of West Virginia |
| Parties | State of West Virginia v. On a Mullen ax |
1. Larceny
An indictment for grand larceny will not be held defective on demurrer on the ground that the property alleged to have been stolen is therein described simply as "two yearling heifers, of the value of Thirty-Seven Dollars and Fifty Cents ($37.50) each, of the total value of Seventy-Five Dollars ($75.00) of the goods, effects and property of" the named owner.
2. Larceny
Upon the trial of one charged with the larceny of two heifers, each of the value of thirty-seven dollars and fifty cents, proof of the stealing of one heifer of the value of twenty dollars or more will sustain a verdict of guilty of the larceny charge.
3. Criminal Law
Upon the re-trial of one charged with a felony and with having been convicted of a former felony, the issue as to the former conviction may be tried anew, notwithstanding that on the first trial the jury found as a part of its verdict that he had not been so convicted.
4. Criminal Law
On the trial of one charged with a felony and with having been formerly convicted of another felony, the giving in evidence of improper details of the former indictment and conviction will not be considered prejudicial error where such evidence is not clearly and distinctly objected to and is followed by a clear admission by the defendant on cross-examination when testifying as a witness on his own behalf, of the truth of such former indictment and conviction.
5. Larceny
Upon the trial of one of four jointly indicted for grand larceny, after another of the four has testified on behalf of the state that he and the other three stole the property involved, it is not error to admit in evidence the testimony of divers witnesses tending to corroborate the testimony of such witness for the state that he separately disposed of the stolen property and with a part of the proceeds thereof purchased certain goods which he delivered to the defendant's home, where they were found.
6. Witnesses
Where the principal witness against one charged with a felony is one claiming to be an accomplice, whose evidence is both corroborated and impeached, and the defense is based chiefly on the defendant's denial of any knowledge of the crime and an alibi supported by four members of his household, the issue thus raised is for the jury.
Error to Circuit Court, Pocahontas County. Ona Mullenax was convicted of grand larceny, and he brings error.
Affirmed.
A. E. Cooper, for plaintiff in error.
Clarence W. Meadows, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for defendant in error.
This case comes here on a writ of error to a judgment of the Circuit Court of Pocahontas County by which one Ona Mullenax was sentenced to the penitentiary for a term of from one to ten years upon conviction for grand larceny.
The indictment was returned at the March term of that court, 1941, and against the defendant jointly with three others. It consists of three paragraphs. The first charges simply "that Ona Mullenax, Richard McCray, Jimmie Vandevander and Jack Mullenax on the..... day of October, 1940, in the said County of Pocahontas, two yearling heifers of the value of Thirty-Seven Dollars and Fifty Cents ($37.50) each of the total value of SeventyFive Dollars ($75.00), of the goods, effects and property of J. M. Hiner, feloniously did steal, take and carry away against the peace and dignity of the State." The remaining two paragraphs are headed "Second Count", and charge minutely the indictment, trial, conviction and sentence of Ona Mullenax for a former felony. A demurrer to the indictment was interposed on the ground that the property alleged to have been stolen is not sufficiently described in the indictment. Whatever may have been the earlier law on this point, and whatever may be the law in other states, this Court has consistently upheld indictments for larceny with no fuller description of the property involved. State v. Lewis, 117 W. Va. 670, 187 S. E. 315, 728, 188 S. E. 473; State v. Robinson, 106 W. Va. 276, 145 S. E. 383, 62 A. L. R. 351; State v. Bailey, 63 W. Va. 668, 60 S. E. 785; State v. Blair, 63 W. Va. 635, 60 S. E. 795; State v. Hupp, 31 W. Va. 355, 6 S. E. 919. The demurrer was correctly overruled.
On the separate trial of Ona Mullenax had on March 19, 1941, the jury returned this verdict: "We the jury find Ona Mullenax guilty as to within indictment", which was amended by the court to read as follow: "We the jury find the defendant, Ona Mullenax, guilty as charged in the first count of the within indictment, and we the jury under the instruction of the Court find that the said defendant, Ona Mullenax, was not formerly convicted of a felony as charged in the second count of the within indictment." This final verdict was subsequently set aside for reasons which do not appear in the record, and a new trial was awarded. Ona Mullenax was retried June 9, 1941, the verdict being as follows: "We, the jury find the defendant guilty as charged in the indictment", which was amended by the order of the court to read thus: "We, the jury find the defendant, Ona Mullenax, guilty as charged in the first count of the within indictment." Motions to set aside the verdict and in arrest of judgment were overruled, and the defendant was sentenced as above stated.
The principal witness for the state was Richard McCray, one of the four named in the indictment. At the time the crime was committed, McCray was a fugitive from the state penitentiary where he was serving a sentence for another larceny of cattle. He also had served a term in a federal prison for burglary of a post office. McCray testified that after escaping from a road gang in May or June preceding the present offense, he came to the home of Ona Mullenax in Pocahontas County where he got a meal, and then made his way to Louisville, Kentucky, thence across the river into Indiana, where he worked on a farm; that he came back to the Mullenax home October 16, 1941, driving a red Dodge truck equipped with a rack for hauling cattle, bearing a Kentucky license issued in the name of J. A. Allen, which he had assumed to conceal himself from the officers in search of him; that he remained in the Mullenax home until the evening of October 18th, when about nine o'clock p. m., he and Ona Mullenax, his son, Jack Mullenax, and Jimmie Vandevander, a brother of Ona's wife, stole two yearling calves, the ownership of which he did not know; that he personally took these calves to the Union Livestock Sales Company at Parkersburg, arriving there on the 19th of October, which was Saturday, where they were sold for a price between seventy and seventy-five dollars; that he was paid by a check which he cashed at the Dodge garage of that city, from the proceeds of which he purchased about twenty-six dollars worth of flour, meal, middlings and salt from the Peerless Milling Company, under an agreement with Ona Mullenax that his share of the profits of the theft should be brought to him in the form of groceries and feed, and that he returned to Pocahontas County October 23rd and delivered the flour and feed at the home of Ona Mullenax. He further testified that on the night of the larceny, the defendant got for him six to eight gallons of gasoline from some nearby filling station, bringing it in a drum or keg. The keeper of the filling station testified to the sale of the gasoline, and identified the check of Mullenax dated October 18th, by which it was paid for, but says that Mullenax then explained to her that the gasoline was for some hunters who "ran out of gas". A resident on the farm adjoining that of Mullenax testified to having seen a truck "partly painted red" equipped with a rack suitable for hauling cattle standing near the Mullenax house on a day in the latter part of October, and again on the second day thereafter.
This story as to the sale and disposition of the calves is corroborated by: a state policeman who had accosted McCray near Parkersburg and interrogated him about himself and the cattle; the secretary of the Livestock Sales Company at Parkersburg who identified and exhibited records to show that McCray delivered two calves to that place from which they were sold; the purchaser of one of the calves who bought the same for a man named Lewis in Mason County; a deputy sheriff of Pocahontas County who was with the agents of the owner of the cattle when they identified the heifer at the Lewis farm in Mason County; an employee of the Dodge garage at Parkersburg who narrated his dealings with McCray and the cashing of the check given for the calves; a representative of the Peerless Milling Company at Parkersburg who exhibited books of account relating to McCray's purchase of the flour and feed in question; and an employee of the owner of the cattle who identified the animal found in Mason County from personal marks of the owner and the tag attached by an inspector at Parkersburg. The other calf was not located and was not traced further than the sales yard at Parkersburg.
The state policeman testified that the calves in McCray's truck at the time of his inspection were one heifer and one steer. The stock yard records clearly described one heifer but are not definite as to the sex of the other calf. McCray says he does not know the sex of the animals. The employee of the owner and another who assisted in the search for them are not positive, but believe that one of the missing calves was a steer.
A certified copy of the indictment in the former case, as well as the orders showing the trial of Ona Mullenax, and his conviction and sentence, were read in evidence. After a motion for a directed verdict was overruled, the defendant called his son, Jack Mullenax, indicted with him, his wife and daughter, and one Ed Barkley, who is claimed to have been staying in the Mullenax...
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