State Of West Va. v. Lawson, (No. 9329)

• Decision Date: 04 November 1942
• Docket Number: (No. 9329)
• Citation: 125 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: State of West Virginia v. C. William Lawson

125 W.Va. 1

State of West Virginia

v.C. William Lawson

(No. 9329)

Supreme Court of Appeals of West Virginia.

Submitted September 29, 1942.

Decided November 4, 1942.

1. Criminal Law

Where it is necessary to establish the identity of the accused as the person charged with former convictions under the Habitual Criminal Law (Code, 61-11-19, as amended), and the same is established by formal court record, personal identification, and by comparison of his fingerprints with those appearing on prison records, the introduction in evidence, over objection, of prison photographs of the accused prominently showing a prison number, overemphasizes the former convictions, is prejudicial and constitutes reversible error.

2. Criminal Law

To justify the introduction, over objection, of evidence showing animus of accused shortly before the alleged commission of a crime, the same must show facts from which relevant inferences may be drawn.

Error to Circuit Court, Raleigh County.

C. William Lawson was convicted of malicious wound- ing and of twice having been convicted of a felony, and he brings error.

Judgment reversed; verdict set aside; new trial awarded.

Fox, President, dissenting.

J. Leonard Baer, for plaintiff in error. William S. Wysong, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for defendant in error.

LovIns, Judge:

Plaintiff in error, C. William Lawson, was indicted in the Criminal Court of Raleigh County, charged with malicious wounding of Pete Corey. The indictment also charged that Lawson had twice been convicted of felonies, one conviction being in the Circuit Court of Lee County, Virginia, and the other in the District Court of the United States for the Southern District of West Virginia. He entered a plea of not guilty, and a trial was had resulting in a verdict of guilty of the offense of malicious wounding as charged and that theretofore he had twice been convicted of a felony in the United States. After overruling a motion to set aside the verdict, the trial court sentenced Lawson to life imprisonment in the penitentiary. On petition of Lawson to the Circuit Court of Raleigh County a writ of error and supersedeas was denied, and he brings the case here for review.

Evidence introduced on behalf of the State shows that Lawson entered Corey's place of business in Beckley, the Rainbow Lunch, on the evening of September 2, 1941, and, after some discussion about obtaining change for a quarter, engaged in an altercation with Corey, in the course of which Corey was beaten about the head by Lawson with a table leg. Corey secured a pistol from beneath a counter during the scuffle and in the ensuing struggle for possession of it, the pistol was discharged and a customer in the lunch room, H. K. Stairs, was wounded in the leg. From the beating administered by Lawson, Corey sustained two lacerations on the back of his head, each requiring four or five stitches. The errors assigned by plaintiff in error relate to procedure, and, therefore, this brief recital of the factual background will suffice.

Plaintiff in error filed a plea of former jeopardy in which it is alleged that he was indicted at the October, 1940, Term of the Criminal Court of Raleigh County, charged with the crime of receiving stolen goods, which indictment also charged that he had twice been convicted of offenses punishable by confinement in a penitentiary, and that upon the trial under that indictment he was acquitted. He further alleges that the former convictions alleged in that indictment are the same as those alleged in the indictment in this case, and asserts that such acquittal bars the charges of prior convictions contained in the indictment herein. A charge of prior conviction does not constitute a charge or allegation of the crime for which a person is being tried, but is merely an allegation of the status of the defendant, which, if supported by proof, determines the extent of the punishment to be imposed and has no connection with the offense for which defendant is being tried, except to determine his punishment in the event he is found guilty thereof. State v. Graham, 68 W. Va. 248, 69 S. E. 1010, 40 L. R. A. (N. S.) 924. The defendant had already been convicted of felonies in Virginia and in the Federal District Court. Therefore, there is no question of former jeopardy, and the demurrer to the special plea asserting former jeopardy was correctly sustained.

Under our practice a charge of former conviction, as well as the principal or substantive charge of crime, is submitted to the same jury. Code, 61-11-19, as amended by Chapter 26, Acts 1939. The charge of former convictions must be proved with the same degree of certainty as the charge of the substantive offense, but the evidence to establish such convictions should not be emphasized to the extent that the defendant will be prejudiced thereby. State v. Stout, 116 W. Va. 398, 180 S. E. 443. The fact of prior conviction and identity of the accused as the person so convicted are the necessary elements to be proved. The first may be proved by a formal record; the other by evidence which establishes the identity of the person on trial as being the same person formerly convicted, and rarely is it necessary to go farther. In this case the State not only identified the defendant by means of oral proof and comparison of fingerprints, but, in addition, submitted to the jury photographs of defendant from the prison records of the Virginia and Federal penitentiaries, each photograph prominently showing the prison number of plaintiff in error. The photographs are attached to records including data with respect to the commission of offenses other than those alleged in the indictment. The trial court excluded all data appearing on the photographs and prison records except the fingerprints and photographs, which were admitted over the objection of Lawson. Two expert witnesses testify that the fingerprints of Lawson taken on the day of his trial, when compared with those appearing on the prison records from the Federal Penitentiary at Atlanta, Georgia, and the State Penitentiary at Richmond, Virginia, as introduced in evidence, show that he is the same person who served terms therein. It is apparent that in the absence of denial that this was sufficient identification of the accused. No reason is perceived why the photographs should have been submitted to further identify him. The admission of the photographs overemphasized the former convictions of the accused, was prejudicial to him, and contrary to the rule laid down by this Court in the case of State v. Stout, supra. In State v. Smith, 128 Ore. 515, 273 P. 323, it was held that photographs and fingerprints are admissible to identify an accused as a previous offender for the purpose of increased punishment; but under the law of the state of Oregon, as quoted in the opinion, separate juries try the issue of guilt of the accused as to the substantive crime and as to former convictions. Since in this jurisdiction both issues are submitted to the same...