State v. Bennett, 13384

• Decision Date: 26 March 1974
• Docket Number: No. 13384,13384
• Citation: 203 S.E.2d 699,157 W.Va. 702
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Allen Curtis BENNETT.

Page 699

203 S.E.2d 699

157 W.Va. 702

STATE of West Virginia v. Allen Curtis BENNETT.

No. 13384.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 29, 1974.

Decided March 26, 1974.

Syllabus by the Court

1. 'Instructions must be based upon the evidence and an instruction which is not supported by evidence should not be given.' Syllabus Point 4, State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971).

2. '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.' Syllabus Point 1, State v. Price and Bruce, 114 W.Va. 736, 174 S.E. 518 (1934).

3. The right of a defendant to question the propriety of the discharge of a jury during trial for manifest necessity by a subsequent plea of autrefois acquit does not arise where a mistrial was obtained at the instance of the accused and was not attributable to prosecutorial or judicial overreaching.

4. A 'manifest necessity' within the contemplation of West Virginia Code, Chapter 62, Article 3, Section 7, is the happening of an event in trial beyond the control of the court, which would require the discharge of the jury and would permit a new trial without validating a plea of former jeopardy.

5. Where a State's witness, who is an alleged accomplice of the accused makes an unsolicited acknowledgment of his conviction for the criminal incident on which the accused is standing trial, and such occurrence is brought to the attention of the trial court by a timely motion, a manifest necessity beyond the control of the court arises, and a refusal to grant a mistrial on such occurrence is reversible error.

6. Article III, Section 14 of the West Virginia Constitution prohibits a material variance between the charge in the indictment and the proof which convicts an accused.

7. An aider and abettor, known in law as a principal in the second degree, cannot be convicted upon an indictment found against him solely as a principal in the first degree.

8. One who keeps watch or guard at a convenient distance and who also acts in aid of another attempting robbery is a principal in the second degree to the crime and is constructively present in the commission of the attempt.

9. An accused who is indicted solely as a principal in the first degree is entitled to a directed verdict of acquittal upon proof by the State that he was only a principal in the second degree.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Charleston, for defendant in error.

Richard L. Douglas, Rice, Hannis & Rice, Martinsburg, for plaintiff in error.

HADEN, Justice:

Convicted of the crime of attempted armed robbery, defendant appeals from a final order of the Circuit Court of Jefferson County of October 16, 1972, which overruled his motion to set aside the verdict of the jury and grant him a new trial, and which also refused to arrest the judgment of the court sentencing him to confinement in the State Penitentiary for a period of ten years.

By an indictment returned April 18, 1972, Allen Curtis Bennett was charged as the sole perpetrator of the crime of attempted armed robbery of one Wade Bennett, a remote relative. Upon a plea of not guilty the case was tried before a jury on June 8, 1972, but that jury was unable to render a verdict. On October 9, 1972, Bennett was retried before a jury and was found guilty 'as charged in the indictment.'

The legal problem presented on this appeal is that while indicted as the sole perpetrator of the crime, Bennett was convicted on proof which demonstrated him to be, at most, an aider and abettor to the crime charged. His conviction was obtained upon proof of the following.

At approximately 9:50 o'clock p.m. on February 29, 1972, an intruder, later identified as Randolph Anderson, came to the home of Mr. Wade Bennett, in Jefferson County, West Virginia. With a gun in his hand, he entered the home and demanded money of Wade Bennett. During the ensuing moments, Anderson twice attempted to shoot Bennett but the gun misfired. Wade Bennett's elderly mother, present and unobserved by Anderson, went into a back room of the residence, secured a gun, returned and shot Anderson twice. Wounded, Anderson fled the residence. The victim then attempted to call the police but found that his telephone was inoperative. A telephone lineman summoned to repair the phone determined that the line into the residence had been intentionally severed.

Defendant, Allen Bennett, was implicated by testimony of Anderson and Fraley, another accomplice charged in the criminal incident. According to their testimony and circumstantial evidence furnished by the testimony of others, Allen Bennett, Anderson and Fraley planned to rob the Wade Bennett residence at the suggestion of Allen Bennett. Because the prospective victim knew Allen Bennett, the plan was to be that Anderson would commit the robbery, Fraley would remain in the getaway automobile, and the defendant Bennett would participate as a look-out charged with the additional duty of severing the telephone line leading to the victim's residence.

According to Fraley who had pleaded guilty to his part in the conspiracy to rob the Bennett residence, the three involved went to the Bennett residence and commenced execution of the criminal plan. Defendant and Anderson left the automobile; Anderson was admitted into the Bennett residence; defendant stationed himself over a knoll, beyond the sight of his companion driver. Upon hearing the reports of gunshots sounding from the victim's home, and upon observing Anderson fleeing from the residence, Allen Bennett hurriedly returned to the automobile and he and Fraley departed the scene of the crime. Fraley drove the defendant across town to the residence of defendant's father where they separated. Arrests followed.

In the trial Allen Bennett denied taking part in the crime and also offered alibi evidence which, if true, would have placed him at a restaurant in the company of others at approximately within the time-frame when the crime had been committed. The jury disbelieved this evidence.

The defendant was not observed by the victim, Wade Bennett, at any time during the commission of the robbery attempt.

There are four errors assigned by the defendant which, if valid, require the reversal of the judgment against him.

Two errors assigned at trial would require that the defendant be granted a new trial. First, the State concedes that the giving of State's Instruction No. 1 over the objection of the defendant was error. This instruction was a pattern jury instruction containing the elements necessary to constitute the crime of attempted robbery by force. It charged the jury, Inter alia, that they must find that the defendant placed Wade Bennett in fear by presenting a dangerous and deadly weapon. As the defendant was never in the presence of Wade Bennett with a weapon or otherwise, the giving of this instruction was error. An instruction should not be given which is based wholly or in material part on a hypothesis not supported by appreciable evidence. State v. Donahue, 79 W.Va. 260, 90 S.E. 834 (1916); State v. Shelton, 116 W.Va. 75, 178 S.E. 633 (1935). As recently summarized, 'Instructions must be based upon the evidence and an instruction which is not supported by evidence should not be given.' Syllabus point 4, State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971).

Second, defendant moved for a mistrial after the State's witness Fraley volunteered testimony in the presence of the jury that he had been tried and convicted of a similar offense arising out of the same transaction which brought the defendant to trial. It appears that the testimony of Fraley in this respect was not elicited nor anticipated by the State whose witness Fraley was. Nevertheless, the defendant believing himself prejudiced, moved for a mistrial on the basis that such evidence was incompetent and prejudicial because it constituted an admission or confession made by an alleged co-conspirator after the alleged conspiracy had terminated, citing for authority, the ruling of State v. Price and Bruce, 114 W.Va. 736, 174 S.E. 518 (1934). The trial court, expressing its concern with the implications of former jeopardy and the strict rulings of this Court in regard to the principle of 'manifest necessity,' see e.g., State ex rel. Brooks v. Worrell, Judge, W.Va., 190 S.E.2d 474 (1972), overruled the defendant's motion and instructed the jury to disregard the admission of the accomplice Fraley.

As the motion for mistrial was made by the defendant and not by the court, we are of the opinion that the principles enunciated in the Brooks case, Supra, and Code 1931, 62--3--7 do not apply. The right of a defendant to question the propriety of the discharge of a jury during trial for manifest necessity by a subsequent plea of autrefois acquit does not arise where a mistrial was obtained at the instance of the accused and was not attributable to prosecutorial or judicial overreaching. Hairston v. Slayton, 333 F.Supp. 197 (W.D.Va. 1971); See also, State v. Wiseman, 141 W.Va. 726, 92 S.E.2d 910 (1956); 2B M.J. Autrefois, Acquit and Convict § 8 (1970, 1973 Supp.)

On the other hand, the objectionable confession in this case occurred spontaneously. It was clearly an occurrence beyond the control of the court and was such as to invoke the principle of manifest necessity for mistrial. Compare State v. Thompson, 148 W.Va. 263, 134 S.E.2d 730 (1964). The case of State v. Price and Bruce, Supra, spoke to this...