State Of West Va. v. Cutlip

• Citation: 131 W.Va. 141
• Decision Date: 17 February 1948
• Docket Number: (No. 10004)
• Parties: State of West Virginia v. Lawson Jordan Cutlip, et al.
• Court: West Virginia Supreme Court

131 W.Va. 141

State of West Virginia

v.Lawson Jordan Cutlip, et al.

(No. 10004)

Supreme Court of Appeals of West Virginia.

Submitted January 21, 1948.

Decided February 17, 1948.

1. Indictment

An indictment charging, in separate counts, different offenses of the same general character, manifestly for the purpose of meeting the different phases of the evidence, should not be quashed for misjoinder of offenses, nor should the prosecutor be required to elect on which count he will proceed to trial.

2. Indictment-

An indictment may allege burglary and larceny in the same count, and likewise may join charges of breaking and entering and larceny in the same count.

3. Evidence

"Where a conclusion of guilt is based upon circumstantial evidence, it is essential that the evidence should beyond all reasonable doubt actually exclude every hypothesis but the one on which the conviction is based." Pt. 2, Syl., State v. Beall, 98 W. Va. 189.

Error from Circuit Court, Pocahontas County.

Lawson Jordan Cutlip, Vesper Ray Cutlip, and others were indicted for burglary, breaking and entering, and larceny. To review a conviction of grand larceny, Vesper Ray Cutlip brings error.

Judgment reversed; verdict set aside; new trial awarded.

A. E. Cooper, for plaintiff in error.

Ira J. Partlow, Attorney General, and J. Chandler Curd, Assistant Attorney General, for defendant in error.

Lovtns, Judge:

A grand jury of Pocahontas County returned an indictment charging Lawson Jordan Cutlip, Vesper Ray Cutlip, Birdie Nancy Dean, and Charles Alexander with burglary, breaking and entering and larceny. The first count of the indictment charges that defendants broke and entered an outhouse adjoining a dwelling house owned by The Chesapeake and Ohio Railway Company, and occupied by Parker Curry. The second count of the indictment charges defendants with breaking and entering an outbuilding not adjoining said dwelling house. Each count charges that defendants did commit larceny of three pork hams and a pork shoulder of the aggregate value of $51.82.

Lawson Jordan Cutlip pleaded guilty to the indictment; Charles Alexander elected to be tried separately and was acquitted; and Birdie Nancy Dean and Vesper Ray Cutlip were tried jointly. The joint trial of Birdie Nancy Dean and Vesper Ray Cutlip resulted in a verdict of not guilty, directed by the court, as to Birdie Nancy Dean, and a verdict of guilty of grand larceny as to Vesper Ray Cutlip. Motions in arrest of judgment and to set aside the verdict having been overruled, the prosecuting attorney filed an information alleging that Vesper Ray Cutlip had been twice before convicted in the United States of crimes punishable by confinement in a penitentiary. It being admitted that he was the same person who had been convicted as indicated in the information, the court sentenced Vesper Ray Cutlip to confinement in the penitentiary of this State for life. To review that judgment, this writ of error was granted.

Vesper Ray Cutlip, hereinafter referred to as "defendant", in company with the other persons jointly indicted with him, went to the home of Parker Curry, located in the Town of Durbin on the 3rd day of April, 1947. The purpose of their visit was to obtain some clothes left there by Birdie Nancy Dean, who theretofore had been employed by Curry as a domestic.

It is not clear how long they stayed there at that time, but there is no dispute that some time after their arrival, the four defendants, together with Parker Curry and his daughter, drove to the Town of Cass, where they bought several bottles of whiskey. Thereupon they returned to the Curry home, and remained there, drinking with Curry and his daughter, until about nine or ten o'clock p. m., when the four defendants left the Curry home. The four defendants then went to the home of Birdie Nancy Dean's sister, where they remained all night.

On the morning following the visit of defendants, Parker Curry and his daughter found that the meat house had been broken into and that three hams and one shoulder had been stolen therefrom. They testified in detail relative to tracks found in and around the outbuilding, which appeared to be imprints made by a man and a woman. The Currys further testified that they then went to Marlinton, where they saw defendants riding by in an automobile, but that they did not talk with them. While in Marlinton, Parker Curry procured warrants for the arrest of the defendants. It is further shown that Parker Curry, in the investigation which followed, recovered two of the hams and the shoulder.

On the morning following their visit at the Curry home, the four defendants again started out in the automobile, and went to the store of Clyde Baxter, where Lawson Jordan Cutlip negotiated a sale of two of the hams and the shoulder to Baxter for the sum; of $35.94. According to the testimony of the wife of Baxter, who handled the transaction, Lawson Jordan Cutlip owed an account at the store amounting to $5.13, and he was given credit for that amount on the sale price of the meat. The remainder was paid to him as follows: eighty-one cents in cash and a thirty-dollar check. During the course of the transaction between Lawson Jordan Cutlip and Mrs. Baxter, defendant entered the store, where he and Lawson Jordon Cutlip engaged in a conversation, the purport of which was that Lawson would lend defendant one-half of the money derived from the sale of the meat, amounting to $17.97, to pay the expenses of a trip to Bluefield contemplated by defendant. No division of the money was made at the Baxter store, and, according to the testimony showing that transaction, Vesper Ray Cutlip had no connection with handling the meat at the store, or receiving the proceeds of the sale thereof other than the conversation noted above.

Later the four defendants went to a beer establishment, where an attendant cashed the thirty-dollar check which Lawson Jordan Cutlip had received from Mrs. Baxter. The attendant stated that he put the money on the counter; that about that time defendant came to the counter and asked for his part of the money; and that he was under the impression that Lawson Jordan Cutlip divided the thirty dollars with the defendant, although he did not know how much money the defendant received.

Thereafter, on the same morning, a member of the Department of Public Safety arrested defendant, Birdie Nancy Dean and Lawson Jordan Cutlip. Alexander was arrested about six o'clock p. m. on the same day.

A written statement was made by Birdie Nancy Dean, which indicated that she knew of the theft of the meat, and that Alexander and Lawson Jordan Cutlip had put the meat in the trunk of the automobile driven by Alexander. She further stated therein that defendant had collected the money for the sale of the meat at Baxter's store, of which Lawson Jordan Cutlip had received $12.00. Upon the trial of Birdie Nancy Dean and defendant, this statement was admitted in evidence. After the admission thereof, the court admonished the jury that it was not evidence against the defendant, but was evidence against Birdie Nancy Dean and against her alone. At the close of the evidence the court again admonished the jury that the statement made by Birdie Nancy Dean should not be considered as any evidence whatever against the defendant.

When the State ended its case in chief, defendant moved the court to strike the evidence and direct a verdict of not guilty as to him, which was overruled. The court, however, sustained a similar motion made in behalf of Birdie Nancy Dean. At the close of all the evidence, defendant made another motion to direct a verdict of not guilty, which was likewise overruled. After the verdict was returned, defendant moved the court in arrest of judgment, and to set aside the verdict, which motions were overruled. Thereupon defendant was sentenced as hereinbefore stated.

The first count of the indictment, as stated above, charges the offense of burglary, as defined by Code, 61-3-11, which is punishable by confinement in the penitentiary for not less than one nor more than fifteen years. The second count of the indictment charges an offense, commonly called breaking and entering, which is a felony and is punishable by confinement in the penitentiary for not less than one nor more than ten years. Code, 61-3-12. Defendant complains that the joining of such counts in an indictment constitutes a fatal mis joiner of offenses, and that the State, at the inception of the trial, should have been compelled to elect on which count she relied for conviction.

A similar question was before this Court in the case of State v. Shores, 31 W. Va. 491, 7 S. E. 413. It was there held that where charges of the same general character are inserted as separate counts in an indictment, manifestly for the purpose of meeting the different phases of the evidence, the indictment should not be quashed, nor should the prosecutor be required to elect on which count he would proceed. See State v. Shelton, 78 W. Va. 1, 88 S. E. 454; State v. Ringer, 84 W. Va. 546, 100 S. E. 413; State v. Larue, 98 W. Va. 677, 686, 128 S. E. 116; I Wharton's Criminal Procedure, Third Edition, Section 341. Furthermore, an indictment may allege both burglary, or breaking and entering, and larceny in the same count. State v. Flanagan, 48 W. Va. 115, 35 S. E. 862; I Wharton's Criminal Procedure, Third Edition, Sections 293 and 489.

However, defendant cornplains on the hypothesis that had the jury returned a general verdict of guilty to the indictment, the court would not have been advised as to what sentence could be pronounced, the first count calling for a punishment of one to fifteen years and the second count calling for punishment of one to ten years.

We do not think this position is tenable, as the court certainly has discretion to amend a verdict in accordance with the finding of the jury. In any event before the verdict is received and the jury discharged, the trial court may, for good reason,...