State Of West Va. v. Stout, (No. 8116)

Decision Date08 June 1935
Docket Number(No. 8116)
Citation116 W.Va. 398
PartiesState of West Virginia v. Arthur Stout
CourtWest Virginia Supreme Court

1. Criminal Law

Where the proof on a motion for a continuance based upon the absence of a material witness shows circumstances that would make the issuance and service of a subpoena plainly useless, it is error to refuse to grant the continuance on the sole ground that the absent witness was not subpoenaed.

2. Criminal Law

Where a former conviction is charged, in an indictment under the provisions of Code, 61-11-18, the proof at the tried on the question of the former conviction, there being no issue thereon, should be confined to the record of the judgment of the court on the former trial and to the identification of the accused as the person formerly convicted.

Error to Circuit Court, Harrison County.

Arthur Stout was convicted of having; stolen a chicken, and he brings error.

Judgment reversed; verdict set aside; new trial awarded.

Wyatt & Randolph, for plaintiff in error.

Homer A. Holt, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for the State.

Kenna, Judge:

Arthur Stout was convicted in the criminal court of Harrison County upon an indictment charging him with having entered the chicken house of one James Pickens and having therefrom stolen a chicken. The indictment also charged a former conviction. He was sentenced to six years' confinement in the penitentiary. The circuit court of Harrison County having denied a writ of error, this writ is prosecuted to the judgment of the latter court.

The assignments of error based upon the insufficiency of the state's proof, we regard as not being well taken. The evidence adduced by the state as to both the offense directly under trial and the former conviction, was direct, positive and sufficient.

The plaintiff in error assigns, among other grounds relied upon for reversal, the fact that the trial court refused to grant him a continuance upon his motion and showing, and in the same connection refused to allow him a brief delay on the morning of his trial to await the attendance of Dr. R. B. Nutter, who had been summoned to testify as to the absence of the defendant's wife, claimed by him to be a material witness and to be too ill to attend his trial. It appears that the defendant expected to prove by his wife that he was at home waiting upon her in her illness at the time that the offense under trial was committed. Dr. Nutter had been summoned, but was not present when the case was called for trial. The defendant thereupon requested that a short delay be granted to await the arrival of the witness. The trial court caused an investigation to be made by a deputy sheriff and, failing to get an explanation of the witness' absence, or an indication of the time that he would be in court, required the defendant to present his motion for a continuance without the presence of Dr. Nutter, and upon such presentation, overruled the motion. The state urges that there was no error in the action of the trial court in refusing the continuance because of the fact that it is not shown that the defendant's wife was summoned to attend the trial, and that one of the essentials of a valid showing for a continuance on account of an absent witness is that due diligence has been used to produce the witness. This may be true, but the defendant complains that the trial court deprived him of the opportunity to make a full showing on his motion to continue by its refusal to wait for a brief time in order to hear the testimony of Dr. Nutter. The record shows that the court met at nine o'clock, and that the case proceeded to trial at about nine twenty. Certainly, the testimony of Dr. Nutter might have been very material on the question whether the failure of the accused to have his wife actually summoned as a witness showed a lack of diligence. The law does not, under all circumstances, require that a witness be actually subpoenaed as a test of due diligence. Wichita Petroleum Co. v. Bell, (Tex.) 275 S. W. 207; Allen v. Downing, 3 111. 454; Bosley v. State, 86 Tex. Cr. R. 619, 218 S. W. 750. The very purpose of a physician's testimony, when the sickness of a witness is assigned as a reason for...

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34 cases
  • State ex rel. Browning v. Tucker
    • United States
    • West Virginia Supreme Court
    • June 18, 1957
    ...that only the bare legal necessities of proving the former conviction or convictions should be presented to the jury. In State v. Stout, 116 W.Va. 398, 180 S.E. 443, this Court held it to be reversible error to overemphasize a previous conviction by reading the entire indictment therefor to......
  • State v. McCraine
    • United States
    • West Virginia Supreme Court
    • May 16, 2003
    ...871 (1942); State v. Lawson, 125 W.Va. 1, 22 S.E.2d 643 (1942); State v. Fisher, 123 W.Va. 745, 18 S.E.2d 649 (1941); State v. Stout, 116 W.Va. 398, 180 S.E. 443 (1935); State v. McKown, 116 W.Va. 253, 180 S.E. 93 9. In 1994, the Legislature amended and reenacted West Virginia Code § 50-5-8......
  • State Of West Va. v. Taylor
    • United States
    • West Virginia Supreme Court
    • March 25, 1947
    ...127 W. Va. 197, 32 S. E. 2d 625. For the reasons which are stated at length in the opinion of this Court in the case of State v. Stout, 116 W. Va. 398, 180 S. E. 443, the reference to the indictment and the character of the offense charged in the indictment in connection with the former con......
  • Hart v. Coiner
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • July 13, 1973
    ...370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). 10 See Dye v. Skeen, 135 W.Va. 90, 62 S.E.2d 681, 689 (1950); State v. Stout, 116 W.Va. 398, 180 S.E. 443, 444 (1935). 11 See R. Donnelly, J. Goldstein, & R. Schwartz, Criminal Law 303 (1962); H. Packer, The Limits of the Criminal Sanction ......
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