State Of West Va. v. Jarrett
| Citation | 119 W.Va. 432 |
| Decision Date | 23 November 1937 |
| Docket Number | (No. 8620) |
| Court | West Virginia Supreme Court |
| Parties | State of West Virginia v. Opha Jarrett |
1. Indictment
Objection to an indictment based upon the failure of a prosecuting attorney to affix his signature on the back thereof, can only be taken advantage of by a motion to quash; and then only where in such motion specific objection to such failure is brought to the attention of the trial court. State v. DeBoard, 119 W. Va. 396.
2. Indictment
An indictment which closely follows the statute defining the offense charged therein, and which clearly informs the defendant of the substantive offense alleged against him, is not defective by reason of the use of the disjunctive "or" in connection with details of the charge, and which do not have a material bearing upon the substantive offense alleged.
3. Automobiles
Where a defendant is charged with the willful taking and driving away of an automobile, without the knowledge or consent of the owner or person in lawful charge thereof, with intent to deprive such owner or person in lawful charge of the possession or use thereof either temporarily or permanently, under the provisions of Code, 17-19-4, and the actual taking thereof is shown, the consent or lack of consent to such taking, on the part of the owner or person in lawful charge, may be inferred from all the circumstances of the taking as established by the evidence.
Kenna, President, absent.
Error to Circuit Court, Kanawha County.
Opha Jarrett was convicted for unlawfully taking an automobile, and he brings error.
Affirmed.
Kay, Casto & Amos, for plaintiff in error.
Clarence W. Meadows, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for the State.
Opha Jarrett was jointly indicted with William Bur-dette in the Intermediate Court of Kanawha County, charged with the unlawful taking of an automobile, the property of C. F. Goebel, in violation of the provisions of Code, 17-19-4. On this charge, he was separately tried, convicted and sentenced to confinement in the penitentiary. Asserting various errors, he prosecutes this writ of error.
Five separate points of error are assigned. (1) The indictment was not attested as required by the statute;
(2) different offenses are charged therein disjunctively;
(3) variance between the allegations and proof; (4) failure to establish the corpus delicti; and (5) lack of evidence to establish the guilt of the defendant.
The first two assignments relate to the indictment. A demurrer was interposed thereto, there was a motion to quash, and after the verdict, a motion in arrest of judgment, all of which were overruled, and exceptions taken.
On the first assignment of error, counsel content themselves with merely stating that the indictment was not attested as required by statute, without pointing out in what manner it fails of proper attestation. We may assume that the objection arises out of the failure of the prosecuting attorney to affix his signature on the back of the indictment. This we held to be necessary in State V. Burnette, 118 W. Va. 501, 190 S. E. 905; but we further held that to take advantage of such defect objection thereto should be timely made. No timely objection was made in this case. The demurrer interposed by the defendant did not reach this defect; nor did the general motion to quash, for reasons elaborately discussed in State v. DeBoard, decided at this term. (119 W. Va. 396.)
The offense for which the defendant was indicted is statutory, Code, 17-19-4, and is defined as follows:
"Any person who, wilfully and without the knowledge or consent of the owner or person in lawful charge thereof, and with the intent to deprive such owner or person in lawful charge of the possession or use thereof, either temporarily or permanently, shall take possession of, enter and drive, or otherwise take away from any street, road, alley, public or parking place, garage or other building or place, while the same is lawfully therein or thereon, any automobile or other motor vehicle belonging to another or in his lawful possession; * * * shall be deemed guilty of a felony, * * *."
The indictment charged that the defendants named therein "wrongfully, wilfully, unlawfully and feloniously, and without the knowledge and consent of the owner or person in lawful charge thereof, and with the intent to deprive said owner or person in lawful charge thereof of the possession or use thereof, did take possession of, enter and drive away from a certain street, road, alley, public or parking place, garage or other building or place, a certain automobile, or motor vehicle, the property of C. F. Goebel while the same was lawfully therein or thereon, in violation of Section 4, Article 19, Chapter 17, Code of West Virginia, 1931," thus following closely the language of the statute in defining the offense alleged therein.
We do not undertake to minimize the difficulties connected with the question presented; but that the indictment under consideration gave to the defendant notice of the offense charged against him, to-wit, that he took into possession and used an automobile owned by another without his consent or that of the person lawfully in charge thereof, will not be denied. The gravamen of the offense is not that he took the automobile from a street, alley, road, parking place, garage or other building or place, but that he unlawfully took possession of, entered, and drove away an automobile not his own. Of that charge he had full and adequate notice, although the indictment is not specific as to immaterial details such as the exact place from which the automobile was taken. However, if there had been an acquittal under this indictment, it would have been res adjudicata as to any subsequent charge based upon the taking of this particular vehicle from whatever place it may have been taken.
There was only one automobile taken, and proof that defendant did not take the same would have been effective to acquit him from the charge of its taking, either from the owner or the person in charge, or from whatever point or place it may have been taken. This meets the suggestion raised on brief that the allegation in an indictment must be so specific as to protect the defendant against subsequent charges for substantially the same offense and to enable him to plead an acquittal as res adjudicata. The defendant could not have been misled or mystified by any allegation in the indictment or the use of the disjunctive, and the best evidence of that assumption is...
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...194 S.E. 1 119 W.Va. 432 STATE v. JARRETT. No. 8620.Supreme Court of Appeals of West Virginia.November 23, 1937 ... Submitted ... September 22, 1937 ... Concurring ... Opinion filed December 15, 1937 ... Syllabus ... by the Court ... 1 ... Objection to an indictment, based upon the failure of a ... ...