State Of West Va. v. Price

• Decision Date: 20 March 1934
• Docket Number: (No. 7857)
• Citation: 114 W.Va. 736
• Court: West Virginia Supreme Court
• Parties: State of West Virginia v. William Price and Bill Bruce

114 W.Va. 736

State of West Virginia

v.William Price and Bill Bruce

(No. 7857)

Supreme Court of Appeals of West Virginia.

Submitted February 15, 1934.

Decided March 20, 1934.

(Rehearing Denied June 11, 1934)

1. Criminal Law

The declarations or admissions of a participant in a conspiracy, made after the conspiracy has terminated, are not admissible in evidence against a co-conspirator of the person making the declarations or admissions.

2. Criminal Law

Declarations and admissions of an accomplice or co-conspirator made during the continuance of the conspiracy and before its object is accomplished are admissible in evidence as against all persons participating in the conspiracy even though they were not present when such declarations or admissions were made, provided that, before such declarations or admissions are admitted in evidence, the state has established the conspiracy by prima facie proof.

3. Criminal Law

When no objection is made in the trial court to the re-reading of the state's instructions to the jury on the ground that doing so resulted in disclosing to the jury which were the state's and which the defendant's instructions in violation of Code, 56-6-20, the question cannot be relied on in this court as reversible error.

Error to Circuit Court, Kanawha County.

William Price and Bill Bruce were convicted of first-degree murder, and they bring error.

See also 113 W. Va. 326, 167 S. E. 862.

Reversed and remanded.

Simms & Simms and George D. Moore, for plaintiffs in error.

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

Kenna, Judge:

The defendants, William Price and Bill Bruce, were indicted in the intermediate court of Kanawha County for murder. They were convicted of first degree murder with a finding by the jury that their punishment should be fixed at imprisonment for life. They were so sentenced, and the circuit court of Kanawha County refused a writ of error to the judgment of the intermediate court of Kanawha County. To the judgment of the circuit court, this writ of error was granted.

The indictment was for the murder of May Stone, who lived with her husband, Dryden Stone, at Hernshaw in Kanawha County. On the night of September 28, 1931, the Stone home, a one-story Jenny Lincl dwelling was burned to the ground. In the fire, May Stone, who was the wife of Dryden Stone and 72 years of age, received burns from the effect of which she died on September 30th. The state's theory was that the defendants, William Price and Bill Bruce, were participants in a conspiracy that culminated in the incendiary burning of the Stone dwelling.

There was evidence that Mr. and Mrs. Stone and Charlie Noble, the son of Mrs. Stone by a former marriage, had retired at nine or nine-thirty o'clock; that, at that time, there was no fire of any kind in the dwelling; that they were awakened at about midnight to find the house in flames; that both Dryden Stone and Noble thought that Mrs. Stone had left the dwelling; that upon going to the outside of the dwelling it was discovered that the fire was burning in two separate parts of the house; and that Charlie Noble, outside of the dwelling, smelled either gasoline or kerosene at the time of the fire.

In our opinion, this proof is sufficient to justify the submission of the case to the jury on the theory that the fire was of incendiary origin.

There is proof tending to show that on an occasion when Bill Bruce, Charley Bruce and William Price were together some two or three weeks before the time of the fire, they discussed the problem of getting Dryden Stone off the creek. The proof shows that Dryden Stone had been a general informer against those conceived by him to be violators of the prohibition law in the neighborhood of Hernshaw, and that he had caused the dwellings of both Bruce and Price to be searched. There is testimony that, subsequent to the occasion upon which Bruce and Price discussed the question of getting Dryden Stone off the creek, each, on different occasions and not in the presence of each other, had made statements to the effect that they purposed to get rid of Dryden Stone by burning his dwelling. If a conspiracy had been shown, or if there was proof to show a common design amounting to a conspiracy, these statements were admissible. State v. Baker, 84 W. Va. 151, 99 S. E. 252. Otherwise, these statements made by the defendants are inadmissible except as against the one making the statement. State v. McCoy, 61 W. Va. 258, 57 S. E. 294. However, there was no objection at the time of their introduction, nor was there any motion to limit their admissibility to the defendant making the statement. The question cannot be raised for the first time in this court. We are therefore of the opinion that the state made a sufficient prima facie showing to justify presenting its case to the jury on the theory that May Stone came to her death in consequence of an incendiary fire, and, furthermore, that that fire was the result of a conspiracy participated in by William Price and Bill Bruce.

It is alleged as error that the prosecuting attorney was permitted to cross-examine and contradict a state's witness, Dorothy James, on the ground of surprise. She had testified favorably to the state's contention in a previous trial of this same case. Her testimony on the former occasion depended in part upon her having seen the defendants on the night of the fire. When placed upon the stand in this trial, after preliminary questions, the prosecuting attorney asked her if she had seen the defendants on the night of the fire and she flatly denied it. Thereupon, the prosecuting attorney avowed his surprise and asked her if she had not testified on the former trial that she had seen the defendants on the night of the fire. This she admitted and her examination in chief thereupon ended. Under guise of cross-examination, counsel for the defendants developed by this witness testimony to the effect that she knew nothing whatever about the fire until after it was over; that her testimony at the former trial was false in its entirety, and that she swore falsely at the former trial by reason of inducements held out to her by Sergeant Carmen, the state policeman in charge of the case. None of: hese things had been brought out upon her examination in chief. She therefore became a witness of the defense as to them. State v. Spurr, 100 W. Va. 121, 130 S. E. 81. Having, for those purposes, become a witness for the defendants, the prosecuting attorney was at liberty to contradict her concerning those matters, not on the theory of impeaching his own witness, but on the theory of impeaching a witness for the defense. Norfolk & Western R. Co. v. Thomas, 110 Va. 622, 66 S. E. 817. This he did by tendering and introducing in evidence the affidavit of the witness made prior to the former trial of the case, which showed her knowledge of the fire before it took place, tended to establish the truth of her testimony at the former trial and denied any inducements or intimidatior s in the making of the affidavit. This was tendered by the prosecuting attorney in contradiction of her testimony given during her cross-examination, not in contradiction of what she had stated in response to her examination in chief. That part of it was closed by her admission of previous contradictory...