State v. Burford

• Decision Date: 04 December 1951
• Docket Number: No. 10387,10387
• Citation: 136 W.Va. 472,67 S.E.2d 855
• Parties: STATE, v. BURFORD.
• Court: West Virginia Supreme Court

Page 855

67 S.E.2d 855

136 W.Va. 472

STATE, v. BURFORD.

No. 10387.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 2, 1951.

Decided Dec. 4, 1951.

Syllabus by the Court.

1. 'In the trial of a criminal case the trial court, acting under Code, 62-3-7, may, for manifest necessity, discharge the jury and order a new trial. Such action will not afford basis for a plea of former jeopardy.' Point 1, syllabus, State v. Shelton, 116 W.Va. 75 .

2. Section 11, Chapter 120, Acts of the Legislature, 1925, Regular Session, requires that all sessions of The Intermediate Court of Ohio County be held at the court house of that county, unless another place has been appointed pursuant to provisions of Code, 51-3-7, 8.

3. 'Where the evidence relied on to convict one of crime is in whole or in part circumstantial, the accused is entitled to an acquittal unless the fact of guilt is proven to the actual exclusion of every reasonable hypothesis of innocence.' Point 2, syllabus, State v. Hunter, 103 W.Va. 377 .

J. Raymond Gordon, Charleston, for plaintiff in error.

Thomas P. O'Brien, W. F. Keefer, Wheeling, W. Bryan Spillers, Charleston, for defendant in error.

GIVEN, Judge.

Defendant, Dewain Harry Burford, indicted by a grand jury of the Intermediate Court of Ohio County, at the February, 1950, term. The indictment contained two counts. The first count charged 'Robert Roy Taylor, alias Howard Fisher; Dewain Harry Burword, alias D. H. Bess; Lee Pullen; John Doe and Richard Roe', with breaking and entering Fisher's Dairy Bar in 1946, with intent to unlawfully and feloniously steal personal property of the value of $1,171.41. The dairy bar was situated in a building in Triadelphia, Ohio County. The second count charged defendants with entering the dairy bar without breaking, with felonious intent. A separate trial was awarded Burford and the jury returned a verdict of guilty as to the charge contained in the first count. The jury, before commencing its deliberations, were instructed by the trial court not to consider the charge contained in the second count. Upon the verdict of guilty the trial court, on August 7, 1950, entered its judgment, sentencing Burford to the state penitentiary. The Circuit Court of Ohio County granted a writ of error to the judgment of the trial court and, by order of February 14, 1951, affirmed that judgment.

The breaking and entering occurred on the morning of May 20, 1946, sometime after two A.M. Two employees of the dairy bar, about five-thirty A.M., discovered that the dairy bar had been broken into, and that the metal safe used for safekeeping of cash and valuable papers had been broken open. The breaking and entering were immediately reported by the employees to Louis Fisher, the proprietor of the dairy bar, and by him to members of the Department of Public Safety. Members of that department arrived at the scene of the crime shortly thereafter and initiated an investigation. It was found that the entry into the building had been made by breaking a pane of glass from a door in the rear of the building, that the safe had been broken open, and an amount of cash in excess of one thousand dollars taken therefrom. Paul Morris, the member of the Department of Public Safety in charge of the investigation, found on the knob of the safe red paint, and later delivered the knob to Sergeant Shanholtzer, of that department, Sergeant Shanholtzer being an experienced chemist. The knob was identified at the trial as State's Exhibit No. 3. Trooper Morris also found that a portion of wood next to the broken pane of glass had been 'bruised,' and a part thereof was cut from the door and delivered to Sergeant Shanholtzer by Trooper Morris. The piece of wood cut from the door was identified at the trial as State's Exhibit No. 4.

A short distance, probably about six hundred feet, from the diary bar there was located a tourist camp known as Camp Joy. Camp Joy, at the time of the breaking and entering, was operated by W. S. Bebout. On the evening of May 19, 1946, two men, suspected by the State as being Burford and Taylor, registered at Camp Joy. The first name to be signed on the register was 'Howard Fisher', and the second name to be signed was 'D. H. Bess'. Following the name of Howard Fisher, across the page, a description of the automobile in which the two men were supposed to have arrived at Camp Joy was given. The make of the automobile, as written, appears to be 'Chrys.', though it could be 'Chev.' The manager of Camp Joy wrote the make of the car on the register. He testified that he was advised by one of the men who registered as to the make of the automobile and, when asked if he could tell the jury the make, answered: 'Olds'--'Chevrolet'. The license number 246035 was also written on the register by the manager of Camp Joy, and he testified that he observed the license number on that car 'that was in camp'. It is the contention of the State that the name 'D. H. Bess' was written on the register by defendant Burford. The two pages from the register were identified as State's Exhibits Nos. 1 and 2, respectively. They were obtained from Bebout by Trooper Morris and were delivered by him to Sergeant R. I. Boone, of the Department of Public Safety, a person experienced in examining and comparing questioned writings.

On May 22, 1946, after the arrest of Lee Pullen, Trooper Lester searched the Chrysler automobile, bearing license number 246035, owned by Lee Pullen. The Chrysler was then at McCann's Garage in the City of Charleston. There were found in the automobile 'an eight pound rock hammer, painted red with the handle sawed off, a two pound blacksmith drawing hammer, one black crowbar or wrecking bar, two steel drills, one cold chisel, one quarter inch steel punch and three pairs of white canvas gloves with blue cuffs, and the usual automobile tools like the jack and tire tool and tire wrench.' The eight pound rock hammer was identified as State's Exhibit No. 11. One of the white canvas gloves, with red substance on it, was identified as State's Exhibit No. 15. Exhibits 11 and 15 were delivered by Trooper Lester to Sergeant Shanholtzer.

About five forty-five P.M. of May 23, 1946, Trooper Lester arrested defendants Burford and Robert Roy Taylor. At the time of their arrest they were riding in a Lincoln Zephyr coupe, owned by Taylor, who was then driving. Upon search of the automobile two pairs of brown cloth gloves were found, one pair over the sun visor on the right, and one pair over the sun visor on the left, of the Lincoln Zephyr. One pair of gloves was identified as State's Exhibit No. 6 and the other pair as State's Exhibit No. 7. There was also found, in the trunk of the Lincoln, a hand axe with red paint on the striking part thereof. The axe was identified, at the time of the trial, as State's Exhibit No. 5. The gloves and axe were delivered by Trooper Lester to Sergeant Shanholtzer.

Van Brown, a police officer of the City of Charleston, testified that he was acquainted with Burford, Taylor and Pullen in May, 1946; that he knew the automobile then owned by Pullen and that he had, during the latter half of May, 1946, observed Burford, Taylor and Pullen riding together in the Chrysler automobile of Pullen, in or about the City of Charleston, probably a 'dozen' times. Louis Fisher, the proprietor of the dairy bar, testified that on his way home after he had closed the dairy bar, about two o'clock of the morning of the breaking and entering, he observed Robert Roy Taylor in a Chrysler automobile, parked about five hundred feet from the dairy bar, but that he did not observe the license number then on the car, and he did not observe defendant Burford in the car. Other evidence relating to the crime will be referred to in connection with the discussion of the particular question to which it is related.

On the fourteenth day of June, 1950, a jury was impaneled to try Burford. Before the introduction of any evidence the prosecuting attorney moved the court that the jury be taken to the scene of the alleged crime, also that the jury be taken to the home of W. S. Bebout, for the purpose of taking the testimony of Bebout. In support of the last mentioned motion an affidavit of the prosecuting attorney was filed showing the nature of the testimony expected to be given by Bebout; that he was ill and unable to attend court; and that the home of Bebout was near the scene of the alleged crime, in Ohio County. Both motions were granted over objections of defendant Burford. The jury, in custody of the sheriff, together with the judge of the court, prosecuting attorney, defendant, and defendant's attorney, viewed the scene of the alleged crime and then were taken to the home of Bebout, where his testimony was taken, after which they returned to the court house of Ohio County, and adjourned for the day. On the morning of the fifteenth, upon reconvening of court, it was disclosed to the court 'that during the preceding night the jury had been taken to a hotel in the City of Wheeling for lodging and, the hotel not having available a room adequate to care for the jury, the jury had been permitted to be separated, a part of the jury sleeping in a room on one floor of the hotel and a part on another floor of the hotel * * *.' Whereupon the State, by the prosecuting attorney, moved for a mistrial, which motion was sustained and the jury was excused from further service, and trial of the case continued until the twenty-seventh day of June, 1950. The defendant timely objected to the granting of the motion, and excepted to the action of the court in sustaining the same, contending that any later trial would place defendant in jeopardy a second time.

The case was called for retrial on the twenty-seventh of June, 1950, and, after the impaneling of the jury, defendant moved the court that he be discharged from custody, for the reason that he had been placed in jeopardy at the former trial which motion was...