State v. Betsall.

• Decision Date: 25 October 1877
• Citation: 11 W.Va. 703
• Parties: State v. Betsall.
• Court: West Virginia Supreme Court

11 W.Va. 703

State

v.Betsall.

Supreme Court of Appeals of West Virginia.

Decided October 25, 1877.

1. In a criminal case where the defendant files an affidavit upon which he bases his motion for a continuance, it is not improper for the court to require the defendant to be sworn at the bar of the court, and to examine him upon oath as to the matters stated in the affidavit; and if upon such examination he shows, he is not entitled to a continuance, the court should refuse it, although the affidavit itself showed legal ground for a continuance.

2. A motion for a continuance is addressed to the sound discretion of the court, under all the circumstances of the case; and though the appellate court will supervise the action of an in, ferior court on such a motion, it will not reverse a judgment on that ground, unless such action was plainly erroneous.

3. If there is any evidence before the jury tending to prove a case supposed in an instruction asked for, and the instruction propounds the law, it should be given.

4. M. rents a barn from W., and for a consideration gives S. the privilege of keeping a horse and feed in the barn; there is but one door thereto, and M. and S. both carry keys to the same, and M, can take the privilege from S. at any moment; the barn is broken open and the furs of M. stolen therefrom. Held:

It is proper in the indictment for the house-breaking, to describe the bam as the property of M., and not the property of M. and S.

5. To authorize the granting of a new trial on the ground of afterdiscovered evidence, four things are necessary:

I. The evidence must have been discovered since the former trial.

II. It must be such as reasonable diligence, on the part of the party asking it, could not have secured at the former trial.

III. It must be material in its object, and not merely cumulative, corroborative or collateral.

IV. It must be such as ought to produce on another trial an opposite result on the merits.

6. As a basis for a motion for a new trial a prisoner files his own affidavit, stating therein that he was surprised on the trial of the case by the testimony of a witness sworn against him, who testified about a pretended conversation with affiant about an alleged accomplice, and that said conversation took place on a certain day; that affiant had no such conversation with said witness on that day; that he was not able to leave his room on that day; that he was so much under the influence of liquor, that he did not know, and had not remembered, where he was and who was with him on said day; that he learned since the trial of a witness whose testimony is material in the case, and that he could not by due diligence obtain his testimony; that he was not aware of the existence or materiality of his testimony, until about the time the evidence was closed; and that he had no possible means of knowing what he could prove on that point, until after the jury had rendered their verdict; and that he was then informed by a friend that two witnesses would prove substantially what was set out in their affidavits, which he tenders. Held; The affidavit is insufficient because:

i. It does not deny the conversation alleged to have taken place between the prisoner and the witness.

II. The only effect of the newly-discovered testimony would be to discredit the evidence of a witness on the former trial.

7. The general rule is that a new trial will not be granted, to enable the party asking it, to discredit a witness who testified against him on a former trial,

8. The testimony of an accomplice is competent.

9. A conviction may be had upon the uncorroborated testimony of an accomplice; and in such case, if the judge who presided at the trial is satisfied with the verdict, and refuses to set it aside, the appellate court will not reverse the judgment and set aside the verdict, on the ground that it rested solely on the uncorroborated testimony of an accomplice.

10. While such testimony is suspicious, and emanates from a bad source, yet the jury may believe it, although it is wholly uncorroborated; and in this state it is not proper for the court to give any instructions to the jury as to the weight of such, or any other evidence.

Writ of error to a judgment of the circuit court of Wood county, rendered on the 11th day of April 1877," upon the verdict of a jury finding Frederick Betsall guilty of house-breaking, of which he stood indicted in said court.

Hon. J. M. Jackson, Judge of the fifth judicial circuit, presided at the trial below.

Johnson, Judge, who delivered the opinion of the Court, furnishes the following statement of the case:

On the 9th day of April 1877, by a special grand jury, the defendant was indicted for house-breaking. The record of the finding shows, that the special grand jury " presented an indictment against Fred. Betsall, for house-breaking, a true bill." Signed, G. J. Hopkins, foreman. The whole record, showing the impanelling of the grand jury, is in all respects regular.

The indictment, with the indorsements thereon, is as follows:

"State of West Virginia, Wood County, to-wit:

"In the Circuit Court of said County:

"The grand jurors of the state of West Virginia, in and for the body of the said county of Wood, and now attending the said court, upon their oaths present, that Fred Betsall, on the fifteenth day of March, in the year of our Lord one thousand eight hundred and seventyseven, in the said county, did feloniously break and enter a certain out-house called a barn, and used and occupied as a ware-room, the property of one W. P. Maddox, and not adjoining to or occupied with the dwelling house of the said W. P. Maddox, with the intent, the goods and chattels of the said W. P. Maddox, in the said outhouse, called a barn, and used and occupied as a wareroom, then and there being feloniously to steal, to take, and carry away and sixteen opossum skins of the value of four dollar ($4.00), and thirty-five skunk skins, of the value of twenty dollars ($20.00), of the value of twenty- four dollars ($24.00) of the goods and chattels of the said W. P. Maddox, in the said out-house, called a barn, and used and occupied as a ware-room, there and then being found, did feloniously steal, take and carry away, against the peace and dignity of the state. Upon the information of Bur Harden, Chas. H. Woods, and De L. Davis, j sworn in open court, and sent to the grand jury to give evidence on this indictment. "D. H. Leonakd, Indorsed:" Prosecuting Attorney."

"J. G. Hopkins,

"Foreman."

On the 9th day of April 1877, to the indictment the prisoner pleaded " not guilty," and for reasons appearing to the court, the cause was continued until the Thursday next thereafter. On the 12th day of April the prisoner was tried by a jury upon the charge in the indictment, and by the jury found guilty, and the term of his imprisonment in the penitentiary fixed by them at two years, And thereupon the prisoner by his counsel moved to set aside said verdict, on the ground that it was contrary toj the law and the evidence, and because of after-discovered evidence. Which motion was overruled by the court, and the prisoner excepted.

The prisoner, by his counsel, tendered four several bills of exceptions to the ruling of the court, which were signed and made a part of the record in the cause. They are as follows:

Exception No. 1.

"Be it remembered, That on the trial of this cause, the State, to maintain its prosecution, proved that the barn referred to in the indictment as being broken and entered, was, on the 12th day of March 1877, in the joint use and occupation of W. P. Maddox and J. H. Spence. The said Maddox testifying (no one testifying to the contrary) that he rented the barn from one Woodruff, to whom he paid the rent for the same himself, and that he rented his meat shop to Spence. He hired to him the privilege of keeping his horse and feed in said stable{ for which he paid him; that said Spence had a key to the door, as well as himself, there being two keys to the lock; that said Spence was there at his pleasure; and that he could take the privilege from him at any moment; that the stable or barn was entirely under his control and in the actual possession of him, said Maddox; and there was only one outer door or entrance to the said barn. And thereupon the prisoner, by his counsel, moved the court to instruct the jury as follows:" If the jury believe from the evidence, the house, alleged to have been broken and entered by the prisoner, was, at the time of the alleged commission of the oifense, in the joint occupancy and possession of William P. Maddox and J. H. Spence, and did not belong to the said W. P. Maddox alone, as charged in the indictment, and that the said Spence had one-half of the said house by virtue of an agreement to pay one-half of the rent for the same; and if they further believe that there was only one door or entrance to said house, and that the same was the common entrance of said Maddox and Spence to said house, then they must find the prisoner not guilty of the house-breaking charged." But the court refused to so instruct the jury, to which opinion of the court in refusing to give said instruction No. 1 the prisoner by his counsel excepted; and this his bill of exceptions tenders, and prays that the same be signed, sealed and saved to him, and be made a part of the record in the cause."

Exception No. 2.

" Be it remembered, That after the jury had returned their verdict in this cause, the prisoner moved the court, to set aside the verdict and grant him a new trial, on the ground that the same was contrary to the law and the evidence given in the case. But the court overruled the motion, and refused to grant a new trial, and therefore the prisoner prayed the court to certify the facts proved on the trial as follows: It was proven that the prisoner the night of the 12th of March 1877, was seen at two saloons at Parkersburg, drinking in company with one Charles Woods and others; that...