State Of West Va. v. Taylor, (No. 9839)

• Court: Supreme Court of West Virginia
• Writing for the Court: HAYMOND.
• Citation: 130 W.Va. 74
• Decision Date: 25 March 1947
• Docket Number: (No. 9839)
• Parties: State of West Virginia v. Tracy Taylor

130 W.Va. 74

State of West Virginia
v.
Tracy Taylor

(No. 9839)

Supreme Court of Appeals of West Virginia.

Submitted January 28, 1947.
Decided March 25, 1947.

[130 W.Va. 74]

1. Indictment

An indictment which charges a statutory offense is sufficient if it substantially follows the language of the statute and fully and completely informs the defendant of the character and cause of the particular offense charged.

2. Criminal Law

The provision of Article III, Section 5 of the Constitution of this State which forbids that any person, in any criminal case, shall be twice put in jeopardy of life or liberty for the same offense applies only to the same offense. It has no application to another or different offense.

3. Criminal Law

Under subsection (d), Section 5, Article 8, Chapter 30, Acts of the Legislature, Regular Session, 1943, in the trial of any person, charged with a violation of that section, testimony concerning the reputation or the character of the place involved is admissible in support of the charge.

4. Searches and Seizures

"A warrant designates a place to be searched with sufficient particularity, when from the description therein the officer executing the warrant can definitely locate the place. Syllabus, Point 2, State v. John, 103 W. Va. 148.

5. Witnesses

"Code, 57-3-6, requires an accused who voluntarily becomes a witness in his own behalf to state in response to questions propounded on cross-examination, whether or not he has been convicted of other offenses." Syllabus, State v. Friedman, 124 W. Va. 4.

6. Evidence

A general objection to evidence admissible in part and inadmissible in part is properly overruled.

7. Evidence

When an objection to evidence is distinctly made and overruled and an exception taken, the objection need not be re

[130 W.Va. 75]

peated to the subsequent introduction of the same or similar evidence, unless it appears that such objection has been otherwise waived.

8. Criminal Law

A judgment in a criminal case will not be reversed merely because of error committed by the trial court but only when the error has been prejudicial to the accused.

9. Witnesses

In the trial of a defendant on an indictment for an offense under Section 5, Article 8, Chapter 30, Acts of the Legislature, Regular Session, 1943, corroboration of the testimony of a witness by another person who was present when the offense was committed is not required by any principle of law or rule of evidence. In such case the weight and the credibility of the uncorroborated testimony of the witness are for the consideration and the determination of the jury.

10. Instructions

Alleged error in instructions given by the court upon the trial of an indictment for a misdemeanor, to which only general grounds of objection have been made, will not be entertained by this Court, and specific grounds of objection only will be considered with respect to instructions in misdemeanor cases.

11. Criminal Law

When the evidence introduced in behalf of the State upon the trial of an indictment for a misdemeanor, is sufficient to establish the guilt of the defendant beyond all reasonable doubt, a verdict of guilty will not be disturbed by the Court upon the ground that such evidence is not sufficient to support such verdict.

Error to Circuit Court, Harrison County.

Tracy Taylor was convicted of receiving certain persons in a specified hotel for the purpose of prostitution, and she brings error.

Judgments affirmed. Guy H. Burnside, for plaintiff in error.

Ira J. Partlow, Attorney General, and Ralph M. Hiner and Eston B. Stephenson, Assistant Attorneys General, for defendant in error.

[130 W.Va. 76]

Haymond, Judge:

The defendant, Tracy Taylor, was tried and convicted in the Criminal Court of Harrison County, upon an indictment containing two counts which charged that, on the day of September, 1944, in Harrison County, she did unlawfully receive, and offer and agree to receive, certain designated persons, in a specified hotel in the City of Clarksburg, for the purpose of prostitution, lewdness and assignation, and that she did unlawfully permit such persons to remain there for such purpose. She was sentenced to be confined in jail for a period of twelve months and to pay a fine of $100.00. The circuit court of that county having refused to review that judgment, the case is here on writ of error.

On September 19, 1944, before the foregoing indictment was returned against the defendant on March 7, 1945, she was arraigned and tried by a justice of the peace of Harrison County on a warrant which, without additional allegations, charged that on the day of September, 1944, in Harrison County, she did unlawfully let, sublet and rent rooms to another with knowledge and good reason to know of the intention of the lessee to use such rooms for prostitution, lewdness and assignation. The justice found the defendant guilty and imposed a sentence of six months in jail and a fine of $100.00. She appealed from the judgment of the justice of the peace to the Criminal Court of Harrison County, and entered into a recognizance to appear before that court at its next regular term on March 7, 1945, at which time, during the pendency of the appeal, the foregoing indictment was returned.

The defendant appeared in the Criminal Court of Harrison County on March 12, 1945, and her trial upon the indictment was continued to, and set for, April 12, 1945. On March 12, 1945, and before the trial of the defendant on the indictment, at the instance of the prosecuting attorney, for the assigned reason that the warrant on which the defendant had been tried and convicted before the justice was defective, the trial court dismissed the appeal

[130 W.Va. 77]

and discharged and released the defendant from the warrant.

The order of dismissal recites that the prosecuting attorney, with the assent of the court, will not prosecute the defendant in the appealed action for the reason that the warrant had been found to be defective. Examination of the warrant which is contained in the original record but which is omitted from the printed record discloses that the allegations of the warrant are not sufficient to satisfy the essential requirement that the accused be fully and completely informed of the character and cause of the accusation. For that reason it was not sufficient in form or substance to sustain a conviction, and was, of course, fatally defective.

On April 12, 1945, when the case was called for trial, the defendant entered her demurrer and motion to quash the indictment. The demurrer and the motion to quash were overruled. The defendant then filed her plea of not guilty and a special plea of former jeopardy based upon her trial and her conviction on the warrant by the justice of the peace. The special plea alleged that the defendant in the warrant and the defendant in the indictment were the same person, that the offense charged in each was the same offense, and that the judgment of the justice of the peace remained in full force and effect. It contained no reference to the appeal by the defendant from the judgment of the justice of the peace or its prior dismissal and the discharge of the defendant from the warrant by the criminal court on March 12, 1945. These omitted facts were set forth in a special replication filed in behalf of the State by the prosecuting attorney. In the replication the identity of the offenses was also denied. The court rejected the special plea and the case was tried before a jury upon the issue joined upon the plea of not guilty. The jury returned a verdict of guilty. The court overruled the motion of the defendant to set aside the verdict and grant her a new trial and entered judgment upon the verdict.

[130 W.Va. 78]

The facts, as presently detailed, were developed in the evidence introduced in behalf of the State upon the trial.

About eleven o'clock on the night of September 4, 1944, an investigating officer, whose identity was then unknown to the defendant, in company with a girl he had met thirty to forty-five minutes previously in a lunch room, went to a hotel known as the K & H Hotel, at No. 328 1/2on the north side of West Pike Street, in the City of Clarksburg, where the defendant was employed as night clerk. The hotel is located in the second and third stories of a threestory brick building, the entrance to which is by a stairway from the street to the second story of the building. At the top of the stairs, on the second floor, to the right is a desk which is used as an office. To the left, opposite the desk, is a hall which leads to a beer parlor. Beyond the office, and along the corridor which extends back from the entrance, are a number of bedrooms. Another stairway leads from the second floor to the third floor where there are additional rooms.

When the investigator and the girl, whom he had not seen before or has not seen since and whose name he did not know, reached the office, he met a man, the manager of the hotel, whom he identified at the trial, and asked him for the clerk. The investigator told the manager they wanted a room. The defendant, who was the clerk, appeared within a few minutes. She asked the investigator if he desired a room. He replied that he did and told the defendant that he was a married man, that the girl with him was not his wife, and that he did not want to place his right name on the register. The defendant...