State Of West Va. v. CHAMBERS.

• Citation: 22 W.Va. 779
• Parties: STATE OF WEST VIRGINIA v. CHAMBERS.
• Decision Date: 27 October 1888
• Court: Supreme Court of West Virginia

22 W.Va. 779

STATE OF WEST VIRGINIA

v.CHAMBERS.

Supreme Court of Appeals of West Virginia.

State of West Virginia v. Chambers.Submitted September 20, 1883

Decided October 27, 1888.

1. In a prosecution, for simple larceny in, this State, it is sufficient

to prove that at the time the offence was committed, the actual or constructive possession of the property stolen, was in the person, alleged in the indictment, to be the owner thereof. See Code, sec 7, eh. 158. (p. 784.)

2. In this State the distinction between simple larceny and larceny

from the person, except where it is accompanied with such force and fear, as will raise the crime to robbery, does not exist, and all larceny not amounting to robbery, is simple larceny, (p. 789.)

3. To constitute the crime of simple larceny, there must have been a

felonious taking of the property from the possession of the owner, and the thief must, for an instant at 1 oast, have had complete and absolute possession of the stolen property, and that during such possession and control, lie must have feloniously removed the same from the place it occupied just before he grasped, seized or laid hold of the same. (p. 799.)

4. Where property has been so feloniously taken from the owner, the

slightest removal thereof, by the thief, from the place it occupied, even if it be but a hair's breadth, with intent to steal the same, will complete the offence of simple larceny, (p. 791.)

5. In such a case, although the whole article has not been removed

from the whole space, which the whole article occupied before it was so taken; yet if every part of the article be removed from that particular space, which that particular part occupied just before it was so taken, such removal is a sufficient asportation to complete the offence of simple larceny. (p. 799.)

6. If the court which tried the cause, overrules a motion for a new

trial, on the ground that the verdict was contrary to the evidence, and the court certifies all the evidence introduced at said trial, instead of the facts proved, and the testimony on behalf of the party making said motion, be in conflict and irreconcilable with that offered by his adversary, the court in considering said motion ought to disregard all such conflicting oral testimony offered on behalf of the maker of said motion; and if the remaining testimony tends to support said verdict, the motion for such new trial ought to be overruled, unless such testimony be clearly insufficient to support such verdict, (p. 799.) '

7. If a person thrust his hand into the pocket of another with intent

to steal his pocket-book and the money contained therein, and seize or grasp said pocket-book, and lift or raise the same to the top of the pocket, and upon being detected, release his grasp thereon, and the pocket-book be left hanging partly out of the pocket, then such taking and removal, is a sufficient "taking and carrying away" to complete the offence of simple larceny, (p. 799.)

8. In such a case, the thief has had such complete and absolute pos-

session and control of such property, as to constitute the felonious taking thereof, and the least removal thereof will complete the offence of simple larceny, although the thief may instantly relinquish the property or restore it to the owner, (p. 799.)

9. If on the trial of a cause one party offers to introduce evidence to

the jury to which the other objects, and his objection is overruled and such evidence is introduced, such objector, if he would not be considered as waiving his said objection, must except to the opinion of the court. (p. 780.)

Woods, Judge, furnishes the following statement of the case:

On the 9th day of April, 1883, Joseph Chambers was indicted in the circuit court of Ohio county for the simple larceny of a pocket-book containg thirty-eight dollars in money from Elizabeth Emblen in the city of Wheeling, in said county on the 16th of December, 1882. The indictment which contained two counts, was in the usual form. In the first count, the pocket-book and money were alleged to be the property of James Emblen; in the second count the said pocket-book and money were alleged to be the property of said Elizabeth Emblen.. The prisoner demurred to said indictment, and to each count thereof, which was overruled. Upon the trial, the jury found the "prisoner guilty as charged in the indictment."

The prisoner moved the court to set aside the verdict and grant him a new trial, on the grounds that it was contrary to the evidence. First, because the evidence failed to show the ownership of the pocket-book and money, as charged in the indictment; and secondly, because the evidence showed there was no asportation of said property alleged to have been stolen. This motion was overruled, and the prisoner excepted, and thereupon the court certified all the evidence given upon the trial, and pronounced judgment upon the verdict that the prisoner he confined in the penitentiary of this State for five years.

To this judgment the prisoner obtained a writ of error from this Court.

W. W. Arnett for plaintiff in error.

Attorney-General Watts for the State.

Woods, Judge:

The circuit court having certified the evidence, instead of the facts proved, on which the jury rendered their verdict, this Court will he obliged to do as they did, and disregard all the evidence offered by the prisoner, which was in conflict with that offered by-the State, for the jury must have disregarded it altogether, as the only witness examined on behalf of the prisoner was himself, who denied every material fact in regard to the alleged larceny, testified to, by the said Elizabeth Emblen, and the witness Mary Gill, both of whom testified that the prisoner committed the larceny for which he stands indicted. The prosecutrix Elizabeth Emblen testified as follows: "I am the wife of James Emblen. On the morning of the 16th December, 1882, I was in the market house of the city of Wheeling in Ohio county. I was pricing a turkey which a lady was lifting out of a box. I was in a stooping posture, my attention was turned to the turkey. I had in my pocket eight dollars in silver. I had also my pocketbook, which was worth about one dollar, or one dollar and a quarter, and in it thirty-eight dollars in notes loose in the pocketbook. My pocket was a pretty deep one. The prisoner while I was examining die turkey wras pushing up against me. I felt the prisoner's hand in my pocket. I felt him grabbing in my pocket. I grabbed with my hand quick, as (puck as 1 could, this way (slapping herself on the thigh); he had his left hand in my pocket, and when I grabbed Ins 'hand so quick, I kept him from hauling the pocketbook out. He had to go a good way into my pocket, it was pretty deep. I had a large shawl on, and an apron, and when I lifted up my apron to sec, my pocketbook was hanging out of my pocket. If 1 had gone a step or two it would have dropped out. I felt his hand, as I went with my hand to grab his hand when I telt it in my pocket. I grabbed his hand as I felt it coming out, to hold it, but I could not do it; he was too big and strong; but I didn't catch hold of his hand for he was too quick forme. I called him a dirty thief; he found the people coming round and he slipped into the market house, I knew he tried to get away with the pocketbook for I could feel him, and when I lifted up my apron my pocketbook was hanging out of my pocket. I did not know it until I put my hand down." The evidence of the prosecutrix was corroborated in almost every material fact by the witness Mary Gill, who in addition to other matters testified as follows: "My business is selling in the market. I was there the same day this thing happened. I saw the prisoner come across the street. He went past our stand very slow; went on down to Mrs. Brown's. Mrs. Emblen was pricing something at the wagon; the prisoner walked down that far and stopped. I said I am going down. As soon as I got there, the prisoner had just taken his left hand out of her pocket, and Mrs. Emblen turned round and says, ' You dirty rascal, you nearly had my pocketbook.' It was an old-fashioned pocketbook. All her bills, &c, were hanging out of her pocketbook, and as soon as she said that, he disappeared. The prisoner was standing right up against Mrs. Emblen. His hand was right down by her side. I saw him have his hand in her pocket, and lie jerked his hand out. As soon as she said 'you dirty rascal, ' he went away. When he took his baud out of her pocket, the bills were all hanging out. The pocketbook was open, and the bills were hanging out. I saw it when he withdrew his hand from her pocket; the pocketbook was hanging from the outside other pocket," Much of this evidence was corroborated by other witnesses on the part of the State, one of whom proved that when taken before the justice the prisoner refused to tell his name, but none of it was contradicted by any witness except by the prisoner himself, who was examined as a witness on his own behalf, and who admitted that lie was in the market house that day, arid was charged by Mrs. Emblen with taking her pocketbook, but denied " that he attempted to take her pocketbook, or that he did anything to her that morning."

Upon this evidence the prisoner was convicted of the larceny of the pocketbook and money, as charged in the indictment.

It is now insisted in argument by the counsel for the plaintiff in error, that this verdict, is not warranted by the Evidence, that the larceny charged, was a larceny from, the person, and that as the property was not wholly taken and removed from the person of Mrs. Emblen, the prisoner did not have such possession and control of the property, as would complete the offence of larceny from the person, and that the prisoner at the most, was only guilty of an attempt to commit the felony charged in the indictment; and that "cases having relation to thefts committed elsewhere than from the person, are not in point in this investigation."

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