State Of West Va. v. Justice, (No. 9913)

• Court: Supreme Court of West Virginia
• Writing for the Court: RILEY.
• Citation: 130 W.Va. 662
• Parties: State of West Virginia v. Ernest Edgar Justice
• Docket Number: (No. 9913)
• Decision Date: 04 November 1947

130 W.Va. 662

State of West Virginia
v.
Ernest Edgar Justice

(No. 9913)

Supreme Court of Appeals of West Virginia.

Submitted September 17, 1947.
Decided November 4, 1947.

[130 W.Va. 662]

1. Perjury

The inducing of one person by another "to willfully testify falsely, under an oath or affirmation lawfully administered," in a proceeding before a grand jury is a misdemeanor under Code, 61-5-2, and not a felony under Code, 61-5-1.

[130 W.Va. 663]

2.Trial

A proceeding before a grand jury is not a trial within the meaning of Code, 61-5-1, which defines perjury and subornation of perjury.

3.Statutes

On the question whether an alleged crime is perjury or the subornation thereof or false swearing, Code, 61-5-1, and Code, 61-5-2, should be read pari materia.

4.Indictment

An indictment purporting to charge a felony which is not sufficient for such purpose but contains sufficient allegations of a misdemeanor may be regarded as an indictment for a misdemeanor.

5.Whitt Case Overruled

The case of State v. Whitt, 39 W. Va. 468, in so far as it holds an order of record in a criminal case reciting that defendant has been indicted for a felony to be a verity, is overruled.

6. Pleas

Where, in an indictment the defendant is charged with false swearing, as defined in Code, 61-5-2, pleads to the indictment "not guilty in manner and form of subornation of perjury, as the State in its indictment against him herein hath alleged," the plea is sufficient and trial may be had on the issue thereon.

7. Trial

In the trial of a defendant for false swearing it is not error to produce record proof that the alleged suborned person was indicted for perjury, pleaded guilty to the indictment and was sentenced upon his plea.

8. Instruction

It is not error for the trial court in a criminal trial to refuse defendant's proffered instruction, which is covered fully by another instruction or instructions.

9. Judgment

Where in a criminal proceeding there is no error other than the entry of a judgment imposing the sentence, the judgment should be reversed and the case remanded for proper judgment of sentence to be entered by the trial court.

Error from Circuit Court, Raleigh County.

[130 W.Va. 664]

Ernest Edgar Justice was convicted of subornation of perjury, and, to review a judgment of the circuit court refusing a writ of error to such judgment of conviction, he brings error.

Judgment reversed; case remanded for entry of proper judgment of sentence.

Lovins, Kenna, Judges, concurring.

Clay S. Crouse and Jno. Q. Hutchinson, for plaintiff in error.

Ira J. Partlow, Attorney General, and J. Chandler Curd, Assistant Attorney General, for defendant in error.

Riley, Judge:

Ernest Edgar Justice prosecutes this writ of error to the judgment of the Circuit Court of Raleigh County, refusing a writ of error to a judgment of the criminal court of that county adjudicating defendant guilty of subornation of perjury, and sentencing him to the penitentiary for a term of not less than one year nor more than ten years'.

By an order of the criminal court, entered on March 19, 1946, the Grand Jury of Raleigh County returned the following indictments, to-wit: "An indictment against Ernest Edgar Justice for felony, No. 1813, * * *." The indictment itself consists of two counts, the first of which charges that defendant did "unlawfully, feloniously and wilfully induce, procure and suborn the said Hanley Richard* to wilfully and corruptly testify falsely" before the Grand Jury of Raleigh County, respecting the alleged murder of one D. T. Perkins. The second count charges that defendant did "unlawfully and willfully induce and procure the said Hanley Richard to wilfully and corruptly swear falsely, in and before said Grand Jury * * *," concerning the alleged murder.

The trial* Inasmuch as the suborned person's name, other than in the indictment and instructions, is referred to as "Richards", for the purposes of this opinion we adopt that spelling.

[130 W.Va. 665]

court having overruled defendant's demurrer to the indictment, defendant filed a plea that he "is not guilty in manner and form of subornation of perjury, as the State in its indictment against him herein hath alleged * * *." After an unusually long trial the jury found defendant "guilty as charged in the within indictment." Thereupon defendant moved the court to set aside the verdict of the jury and in arrest of judgment, and that defendant be granted a new trial, which motions were overruled.

On the evening of September 10, 1945, D. T. Perkins, while engaged at his occupation in defendant's store, was shot and killed. The building in which the homicide occurred was a two-story structure, the second floor then being used as a dwelling by defendant and his wife, and the lower for a store and post office. At the time of the homicide defendant was at the town of Odd, Raleigh County, about seven miles distant, where he had gone with other persons for the purpose of buying meat. Upon his return he found members of the Department of Public Safety at the scene of the homicide conducting an investigation. Shortly after the homicide defendant conferred with the state police, offered money for the production of the gun for ballistic purposes which was supposed to have been used in the homicide, and discussed with the officers conducting the investigation the matter of contributing to a reward.

Richards, the person charged in the instant indictment to have been suborned, and his wife, Edna, according to their testimony, were at their home at the time of the homicide, and did not learn of it until the following morning. They testified, however, that defendant took them to the office of W. A. Thornhill, an attorney practicing in Raleigh County, where they made separate written statements to the effect that they had seen from a position outside defendant's building, Ivan Grose and Richard McVey commit the homicide. These statements were to the effect that they (the Richards) arrived at the rear of Justice's store by automobile, and saw two men, whom they recognized as Grose and McVey, the former of whom

[130 W.Va. 666]

entered the cellar of the building by an outside door on the side of the store and was later seen through a window to come into the room where Perkins was working and, after demanding that Perkins open the safe, Grose was seen to shoot Perkins twice.

The Richards lived at Princewick in Raleigh County. Defendant went there and brought them to Beckley for the purpose of testifying before the grand jury in the Grose-McVey proceeding, which, according to defendant, was done in pursuance of arrangements made with the Prosecuting Attorney of Raleigh County and members of the Department of Public Safety. From the testimony of the official reporter, who took the evidence as to the happenings before the grand jury in the Grose-McVey proceeding, defendant testified substantially in accordance with the statement which he had made in Thornhill's office. On the basis of this testimony, Grose and McVey were indicted for murder. Thereafter the state police questioned Richards and his wife, who stated to the police that the testimony they had given before the grand jury was false, and that defendant had induced them so to testify on the promise of a reward. To that effect, they gave written statements to the prosecuting attorney. Thereafter and prior to the instant trial Richards was indicted for perjury in the Criminal Court of Raleigh County, and upon his plea of "guilty," sentenced to the penitentiary. The indictment, the order setting forth the plea and the judgment of guilt and sentence were introduced into evidence over defendant's objection.

Richards testified in the instant trial that his testimony before the grand jury in the Grose-McVey case was false, and that Justice had induced and prevailed upon him so to testify.

After Richards had testified before the grand jury in the Grose-McVey case, R. L. Tabscott, a member of the Department of Public Safety, was permitted to testify over objection that he went to Princewick and brought Richards to state police headquarters in Beckley, where

[130 W.Va. 667]

Richards stated to him and A. Scalise, another member of the Department of Public Safety, that the statements which he and his wife had made at Thornhill's office were false, and that they had been induced to make the statements upon the promise of a reward of two hundred dollars; that after making such statement the prosecuting attorney appeared at headquarters and a detailed statement was taken from Richards by him. Further the witness Tabscott was permitted to testify over objection that after the interview at state police headquarters, the prosecuting attorney, Scalise, Richards and the witness Tabscott went to the Richards' home, where the prosecuting attorney took a statement from Edna Richards that "She had been induced by Mr. Justice to make this previous statement that she had made at Mr. Thornhill's office in Beckley." The State also introduced testimony, by the two officers, of interviews with one Lucille Alexander.

After the court had overruled defendant's objection to the introduction in evidence of these statements and interviews, the court sustained defendant's motion, in which the State joined, that they be stricken from the record, and instructed the jury not to consider the evidence of the witness...