State v. Alva Jones et al.
| Decision Date | 26 November 1929 |
| Docket Number | (No. 6400) |
| Citation | 108 W.Va. 264 |
| Court | West Virginia Supreme Court |
| Parties | State v. Alva Jones et al. |
1. Criminal Law Comment by State's Counsel Before Jury on Defendant's Failure to Testify in Own Behalf Violates the Constitution, and is Reversible Error (Code, c. 152, § 19; Const, art. 3, § 5).
Comment by counsel for the state before the jury upon the failure of defendant to testify in his own behalf, violates section 19, Chapter 152, Code, and section 5, Art. Ill of the constitution, and constitutes reversible error, (p. 266.)
(Criminal Law, 16 C J. § 1250, p. 630, N. 37.)
2. Same Evidence of Defendant's Statements Made as Witness Before Grand Jury Concerning Crime Charged Held Improperly Admitted (Code, c. 152, § 20).
The evidence of statements made by the defendant as a witness before the grand jury concerning the crime with which he is charged was improperly admitted, (p. 266.)
(Criminal Law, 17 C J. § 3639, p. 301, N. 49.)
Error to Circuit Court, Roane County.
Alva Jones was convicted for grand larceny, and he brings error.
Reversed; verdict set aside; new trial awarded.
Harper & Baker and Or over F. Hedges, for plaintiff in error.
Howard, B. Lee, Attorney General, and W. Elliott Nefflen, Assistant Attorney General, for the State.
The defendant, Alva Jones, was tried, convicted and sentenced to two years and six months in the penitentiary for grand larceny, under an indictment charging him and Howard Hively jointly with the larceny of $30.00 belonging to Susan Walker.
Jones and Hively had been formerly tried and convicted jointly. The judgment sentencing them under that conviction to a term in the penitentiary was reversed, on a former writ of error, because of improper remarks of the trial judge, misconduct of the prosecuting attorney, and the admission of improper evidence on behalf of the state. State v. Howard Hively et al., 103 W. Va. 237. After the case was remanded, the defendants severed and a separate trial of Jones, resulting in the judgment complained of, followed. Hively was also re-tried and convicted, and is back in this Court on a second writ of error. The evidence tending to prove the guilt of Jones and Hively is fully recited in the opinion of the Hively case to he announced contemporaneously herewith, except that the evidence in this case tends to implicate Hively as principal in the first degree and Jones as principal in the second degree. Jones did not testify.
Remarks of the prosecuting attorney, as a witness for the state, reflecting upon the character of Jones; the admission of statements made by Jones before the grand jury as tending to implicate him in the commission of the crime; and argument of counsel for the state that the evidence of the prosecution had not been denied by Jones himself, constitute the chief assignments of error.
Although a general...
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