State Of West Va. v. Cobb, 8966
| Court | Supreme Court of West Virginia |
| Citation | 122 W.Va. 97 |
| Decision Date | 20 February 1940 |
| Docket Number | No. 8966,8966 |
| Parties | State of West Virginia v. F. D. Cobb |
122 W.Va. 97
State of West Virginia
v.
F. D. Cobb
Supreme Court of Appeals of West Virginia.
Submitted February 6, 1940.
Decided February 20, 1940.
[122 W.Va. 97]
1. Larceny, Embezzlement, False Pretenses
"To warrant conviction for larceny, embezzlement, or of obtaining goods or money by false pretenses, the accused must have had the present intent to commit the offense at the time; and an instruction to the jury omitting this element in the several offenses, is erroneous." State v. Smith, 97 W. Va. 313, 125 S. E. 90, Pt. 1 Syl.
2. Instructions
An erroneous binding instruction is not cured by a correct one.
3. Larceny, Embezzlement
"On the trial of one charged with the larceny or embezzlement of goods proof of actual or constructive possession of the goods by the one alleged in the indictment to be the owner thereof is sufficient." State v. DeBerry, 75 W. Va. 632, 84 S. E. 508, Pt. 2 Syl.
4. Criminal Law
It is error for the state, on cross-examination of an accused, to make inquiry concerning a contemporaneous indictment found against him.
[122 W.Va. 98]
5. Criminal Law
The trial court has a broad discretion in the control of trials and the order of proof.
Error to Circuit Court, Logan County.
F. D. Cobb was convicted of larceny, and he brings error.
Judgment reversed; verdict set aside; new trial awarded.
Emmet F. Scaggs and Capehart & Miller, for plaintiff in error.
Clarence W. Meadows, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for defendant in error.
Riley, President:
The defendant, F. D. Cobb, was indicted and convicted in the circuit court of Logan County for the larceny of $77.00, and sentenced to confinement in the penitentiary for the period of five years.
The conviction was procured largely upon the testimony of one H. E. Wright, who was superintendent of Aracoma High School, in Logan County for the school years 1936-1937 and 1937-1938, during which time the defendant Cobb was the assistant county superintendent of schools of Logan County in charge of negro schools. In connection with the Aracoma High School, certain funds were received from the operation of a cafeteria, athletic activities, and other entertainments. The $77.00 in question was represented by a check dated October 29, 1936, which was delivered by Wright to Cobb and drawn on funds deposited in Wright's name in The National Bank of Logan. When this check was issued, the funds derived from the cafeteria and other activities were commingled with Wright's own funds.
Wright testified that defendant had told him that Aracoma High School, together with other schools in the county, were to turn over certain funds monthly to the board of education, that Wright's school was to furnish a
[122 W.Va. 99]
fund of $40.00 a month and that, in accordance with these instructions, Wright gave to Cobb a total of ten checks aggregating $356.10, the first being the check upon which the indictment was based. On the contrary, the defendant denied this conversation and stated that the money was given to him by Wright to repay certain loans made to the latter by Cobb and by James Robinson and J. F. Wade, teachers in Logan County. Both Robinson and Wade testified in corroboration that they had, in fact, made loans to Wright which had been repaid by Wright through Cobb.
The record in this case is replete with recitals tending to show that acrimony lay between Wright and Cobb. The charges and counter-charges contained therein are numerous indeed. No useful purpose will be served by their narration here. Suffice to say that on the main factual question of defendant's guilt or innocence the evidence is in clear conflict and sufficient to sustain the verdict of the jury.
The first assignment of error involves the giving of state's instruction No. 1. This instruction told the jury in effect that if they should believe from the evidence beyond a reasonable doubt that the defendant obtained the sum of $77.00 in question from the witness Wright by means of false representations, they should find defendant guilty as charged in the indictment. Defendant's counsel say that this instruction is erroneous because it fails to present to the jury the question whether the defendant at the time the money was obtained entertained the felonious intent of stealing it. The attorney general likewise admits error in the instruction; but suggests the error was cured...
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...that of the other party.' See State v. Fitzsimmons, W.Va., 73 S.E.2d 136; Farley v. Farley, 136 W.Va. 598, 68 S.E.2d 353; State v. Cobb, 122 W.Va. 97, 7 S.E.2d 443; State v. Driver, 88 W.Va. 479, 107 S.E. 189, 15 A.L.R. 917; Lewis v. Alkire, 32 W.Va. 504, 9 S.E. 890. In State v. Atwell, 109......
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Hoover v. State, CR-77-187
...it was actually owned by someone else is not a fatal variance. See Flannigan v. State, 232 Md. 13, 191 A.2d 591 (1963); State v. Cobb, 122 W.Va. 97, 7 S.E.2d 443 (1940). We have held that, in false pretense, it is not necessary that the indictment charge that the person from whom the money ......