State Of West Va. v. Sisler, (No. 9088)
| Decision Date | 12 November 1940 |
| Docket Number | (No. 9088) |
| Citation | 122 W.Va. 594 |
| Parties | State of West Virginia v. Lloyd Sisler and Scott Sisler |
| Court | West Virginia Supreme Court |
1. Criminal Law
Where one residing in another state is brought into this state and tried and convicted of an offense in a court having jurisdiction thereof, the trial court is not required to inquire whether the accused was properly brought within the jurisdiction, and the objection made after conviction that the trial court did not have proper jurisdiction of the person of the accused is unavailing.
2. Burglary
It is prejudicially erroneous, in a trial for burglary, for the court, at the instance of the state, to give to the jury an instruction which assumes that the accused made the entry charged in the indictment.
Error to Circuit Court, Preston County. Lloyd Sisler and Scott Sisler were convicted of burglary, and they bring error.
Reversed and remanded.
Burnside & Hall, for plaintiffs in error.
Clarence W. Meadows, Attorney General, Kenneth E. Hines, Assistant Attorney General, and Melvin C. Snyder, for defendant in error.
To a judgment of conviction of burglary and sentence of penitentiary confinement, the defendants, Lloyd and Scott Sisler, were awarded writ of error by this Court.
The prosecution was based on an indictment charging the defendants with breaking and entering in the nighttime a chicken house being an "outhouse adjoining the dwelling house of Blanche Jordan and occupied therewith", and stealing chickens of the value of $30.00, the property of Howard Jordan.
The Jordan family lives in Preston County, West Virginia, near the West Virginia and Maryland State line. The defendants reside with their mother in the State of Maryland about one-half mile from the Jordan home.
On the night of April 3, 1939, twenty-seven chickens were taken from Jordan's chicken house, situated forty to fifty feet from the Jordan dwelling. The chickens were later found, in a rock cave, located about one and one-half miles from the Jordan home and about one mile from the Sisler home, and on property of neither Jordans nor Sislers. The cave was off the public road leading past the Sisler home and the chickens were restrained within the confines of the cave or cliff by woven wire. There was also evidence that provision had been made for feeding and watering the chickens there.
The Jordans testified that the chickens were fed on the evening of the third of April, near the chicken house and that the following morning about eight o'clock discovery was made that the chickens were gone; that the door of the chicken house was usually kept closed and secured by a wooden latch or "button", and that on the morning of the fourth the door was closed; that when the door was shut the chickens had access to the building through a small opening near the floor; that there had been a light snow fall that night and about ten o'clock the morning of the fourth after the snow had melted, tracks, apparently of two persons, were observed near the chicken house door, which, when traced, led in the direction of the Sisler home. It was the theory of the state that the theft had taken place some time before midnight and before much snow had fallen. The Jordans further testified that automobile tire tracks were observed in the road leading from the Sislers to a point near the rock cave; that the tracks were made by the same tread of tires as used on the Sisler car; that a double-bitted ax, dish pan and two chicken coops were found at the rock cave and that each of these articles was the property of the Sislers.
The defense was an alibi. Scott and his mother testified that they left home before dark on the evening of the third of April to attend a soil conservation meeting at Friendsville, Maryland, twelve miles from the Sisler home and that Lloyd remained at home; that they traveled in their own car to the home of Jasper Sisler, brother of defendants, and from there to Friendsville with Jasper in his car; that after attending the meeting they started home arriving there about 11:30 p. m.; that on their return they met Mrs. Lewis Vansickle, her son Everett, and daughter Mildred leaving the Sisler home and that Lloyd was in the house; that neither Scott nor Lloyd left the house the remainder of the night; and that snow began to fall about 11:00 o'clock and continued to fall until early morning.
Lloyd testified that soon after his mother and Scott departed for Friendsville, Mrs. Lewis Vansickle, her son and daughter came in and spent the evening with him listening to radio programs; that they went home about the time Scott and his mother were returning; and that he did not leave the house that night.
The Vansickles testified that Lloyd did not leave the house while they were there; that they went home about 11:30 and met Scott and his mother at the gate going into the Sisler property.
Lenore Sisler, daughter of Jasper, had been visiting in the defendants' home. She testified that she returned from her home with Scott and her grandmother to the latter's home about 11:30 that night, and that the Vansickles were leaving and Lloyd was at home.
Louis Vansickle had accompanied A. W. Jordan, father of Howard, to the conservation meeting. Both testified they saw Scott and his mother at the meeting.
The defendants and their mother deny ownership of the articles found at the cave and also deny that the car tracks testified to by the Jordans were made by the Sisler car.
Thus there was presented a sharp factual controversy for jury determination.
The first contention of the defendants is that they were wrongfully arrested in the State of Maryland,...
To continue reading
Request your trial
-
State ex rel. Sublett v. Adams
...and is now serving that sentence. See Cases Collected, 165 A.L.R. 947; State v. McAninch, 95 W.Va. 362, 121 S.E. 161; State v. Sisler, 122 W.Va. 594, 11 S.E.2d 534; Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. For the reasons stated herein, the writ is discharged and the relator......
-
Brooks v. Boles
...Amendment to the Constitution of the United States. State ex rel. Sublett v. Adams, 145 W.Va. 354, 115 S.E.2d 158; State v. Sisler, 122 W.Va. 594, 11 S.E.2d 534; State v. McAninch, 95 W.Va. 362, 121 S.E. 161. This proposition was forcefully affirmed by the Supreme Court in Frisbie v. Collin......
-
Pebley v. Knotts
...F.2d 253, certiorari denied, 316 U.S. 702, 86 L.Ed. 1770, 62 S.Ct. 1305; State v. McAninch, 95 W.Va. 362, 121 S.E. 161; State v. Sisler, 122 W.Va. 594, 11 S.E.2d 534. And in Ex parte Ker, C.C., 18 F. 167, where the facts were very similar to the facts here, it was held that it was not compe......
-
Dean v. State of Ohio
...being held under process legally issued from a court of that jurisdiction. State v. McAninch, 95 W.Va. 362, 121 S.E. 161; State v. Sisler, 122 W. Va. 594, 11 S.E.2d 534; Ex parte Brown, D.C., 90 F.Supp. 50; Pebley v. Knotts, supra. See also 165 A.L.R. 948 for a general discussion of this It......