State Of West Va. v. Fisher
| Decision Date | 19 October 1943 |
| Docket Number | (No. 9460) |
| Citation | 126 W.Va. 117 |
| Court | West Virginia Supreme Court |
| Parties | State of West Virginia v. Ray Fisher |
In a criminal action, under an indictment charging a former conviction under Code, 61-11-18, it is not error for the trial court to admit in evidence the testimony of an attorney, who represented defendant in the trial in which the former conviction was had, bearing upon the identity of defendant, where such testimony is not based upon and does not concern any confidential communication between defendant and his former attorney or any statement of the former to the latter.
Under an indictment charging defendant with a former conviction, defendant's guilt or innocence of the offense upon which the former conviction was had is immaterial and evidence bearing upon such question is inadmissible. In such case, "It is not the fact of the former offense having been committed that is in issue, but the fact of the accused's conviction of the former offense." State v. Stout, 116 W. Va. 398, 402.
In a criminal trial, under an indictment charging defendant with grand larceny and a former conviction, it is not reversible error for the trial court, at the bar thereof and in the presence of the jury, to amend the verdict of the jury reading, "We, the jury, find the defendant guilty.", to read, "We, the jury, find the defendant, Ray Fisher, guilty as charged in the within indictment.", where the verdict, as amended, was read to the jury, which, being polled, assented thereto.
It is error and violative of Article I, Section 10 of the United States Constitution for a trial court in a criminal proceeding to impose upon a defendant an indeterminate sentence under Code, 61-11-16, as amended by Chapter 24, Acts, West Virginia Legislature, 1939, where the conviction is for an offense committed before the enactment of the statute.
Where in a criminal proceeding there is no error other than in the entry of the judgment imposing sentence, the judgment should be reversed and the case remanded for proper judgment of sentence to be entered by the trial court.
Error to Circuit Court, Ritchie County. Ray Fisher was convicted of grand larceny, and he brings error.
Judgment reversed; case remanded.
S. A. Powell and Dewey S. Wass, for plaintiff in error.
Ira J. Partlow, Acting Attorney General, Ralph M. Hiner, Assistant Attorney General, and Harry E. Moats, for defendant in error.
Riley, President:
Ray Fisher, tried for the third time in the Circuit Court of Ritchie County for the crime of grand larceny charged to have been committed on July 21, 1937, prosecutes this writ of error to a judgment sentencing him under the indeterminate sentence statute (Code, 61-11-18) to a term of from six to fifteen years in the penitentiary, with recommendation that he be confined for the minimum term of six years.
The indictment under which defendant was finally tried and convicted contains three paragraphs. The first, designated the first count, contains an alleged copy of an indictment returned by the grand jury at the November, 1926, term, of the Criminal Court of Harrison County, charging Theodore Oats and Ray Fisher with armed robbery, and alleges that they were tried upon said indictment, convicted and sentenced to the penitentiary for a term of ten years. The second charges defendant with the larceny of a black steer of the value of fifty-five dollars, belonging to the Ritchie County Live Stock Sales Company; and in the third defendant is charged with the theft of a black steer valued at fifty-five dollars belonging to Okey Black.
The first trial, had upon an indictment containing no charge of the prior conviction, resulted in a hung jury; the second in a verdict of guilty, which was set aside by this Court and a new trial awarded (State v. Fisher, 123 W. Va. 745, 18 S. E. 2d 649); and the third trial resulted in the verdict upon which the judgment now complained of was entered.
At the trial the State, over objection, introduced in evidence, certified copies of two orders of the Criminal Court of Harrison County in said case of State v. Theodore Oats and Ray Fisher, one entered December 6, 1926, containing the verdict of the jury finding defendant guilty as charged in the indictment, and the other, entered December 10, 1926, sentencing said defendant to a ten-year term in the penitentiary. The State then offered, and the court admitted in evidence, over objection, the testimony of R. S. Blair, a practicing attorney, to the effect that defendant is one of the persons he represented at the preliminary hearing before a justice of the peace and the trial in the Criminal Court of Harrison County, under which the alleged former conviction was had. Upon crossexamination, defendant's counsel sought to elicit from the witness an answer to the question: "What was your opinion in that trial as to whether Ray Fisher was guilty or not guilty?". Upon objection having been sustained to this question, defendant's counsel, in the absence of the jury, vouched on the record the witness' opinion that he believed defendant innocent of the offense upon which the former conviction was had.
During the course of defendant's evidence, his counsel offered a copy of a conditional pardon of the alleged former offense granted by Governor William G. Conley, which was admitted, over objection, and a certified copy of the Governor's report to the Legislature, setting forth the reasons which prompted him to grant the pardon, which the court refused to admit in evidence.
Among others, the court gave to the jury defendant's instruction No. 8, which presented the issue whether defendant was guilty of the alleged larceny of the steer described in the indictment,-and the alleged former conviction. This instruction informed the jury that if defendant was guilty of both charges, the punishment would be confinement in the penitentiary from six to fifteen years.
The jury returned a verdict: "We, the jury, find the defendant guilty". Thereupon, the trial court, over defendant's objection, amended the verdict to read: "We, the jury, find the defendant, Ray Fisher, guilty as charged in the within indictment". At the court's request the foreman signed the panel at the judge's desk, and then returned to the jury box. The verdict as amended was then read to the jury in open court, and, upon being asked if it was their verdict, a number answered, "Yes," and others nodded their heads. The jury, at defendant's re- quest, was then polled and all responded in the affirmative. During the course of these proceedings the jury remained in the court room.
The foregoing represents all the facts contained in the record necessary for a consideration of defendants assignments of error, which are seven in number and for convenience will be considered seriatim.
Error first is assigned to the admission of the testimony of R. S. Blair, defendant's former attorney, as to his former conviction. It is settled law in this State that a communication to an attorney by a client or former client dealing with relation as attorney and client is privileged. Donohoe v. Collett, 87 W. Va. 383, pt. 6, syl., 105 S. E. 265; Hodge v. Garten, 116 W. Va. 564, pt. 1, syl., 182 S. E. 582. But the witness' testimony is not based upon, nor does it concern, any confidential communication between Fisher and his former attorney, or any statement of the former to the latter, and our attention has not been directed to any West Virginia decision or statute holding inadmissible a former attorney's testimony as to the identity of a former client when such testimony does not involve, or is not based upon a professional communication or a statement made by the client to his former attorney. In our opinion, Blair's testimony did not involve a privileged communication within the meaning of the rule, and was not prejudicial to defendant's interest. See generally, 1 Thornton on Attorneys at Law, p. 218, notes 15, 17.
Defendant further assigns as error the trial court's refusal to permit Blair to express his opinion whether defendant was guilty of the alleged former offense. This assignment is clearly without substantial merit. The additional sentence provided by Code, 61-11-18, 19, as amended by Chapter 26, Acts West Virginia Legislature, 1939, is permitted only on the ground of a former conviction. Whether defendant was guilty or innocent of the offense for which he was formerly convicted is immaterial. "It is not the fact of the former offense having been committed that is in issue, but the fact of accused's conviction of the former offense". State v. Stout, 116 W. Va. 398, 402, 180 S. E. 443. To like effect: State v. Lawson, 125 W. Va. 1, 22 S. E. 2d 643.
Error is also assigned to the trial court's refusal to admit in evidence the certified copy of Governor Conley's report, purported to set forth the reasons which prompted the Governor to grant defendant a conditional pardon. We do not think the trial court erred in this regard. When this case was here before on writ of error (State v. Fisher, supra), it was held that notwithstanding the conditional pardon for the offense for which the defendant was formerly convicted, the condition is a former conviction under Code, 61-11-18. Point 1 syllabus in that case reads: 'When the condition upon which a pardon under Code, 5-1-16, rests, is, by the final judgment of a court of record, found to have been violated, the conviction for the offense which was conditionally pardoned may constitute a former conviction under Code, 61-11-18". This holding is the law of this case on the question of the effect of a conditional pardon, and is in accordance with the prevailing view. For an excellent collation of authorities see People v. Gowasky, 244 N. Y. 451, 155 N. E. 737, 58 A. L. R. 9, note pages 49, 50, 51; People v. Brown, 253 Mich. 537, 235 N. W. 245, 82 A. L. R. 341,...
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