State v. Chaffin

• Decision Date: 21 November 1972
• Docket Number: No. 13186,13186
• Citation: 156 W.Va. 264,192 S.E.2d 728
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Paul E. CHAFFIN.

Page 728

192 S.E.2d 728

156 W.Va. 264

STATE of West Virginia v. Paul E. CHAFFIN.

No. 13186.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 3, 1972.

Decided Nov. 21, 1972.

Syllabus by the Court

1. A motion for a continuance based on the absence of a material witness is addressed to the sound discretion of the trial court, and its ruling on such motion will not be disturbed unless it is clearly wrong and it appears that such discretion has been abused.

2. A motion for a continuance for the purpose of having a psychiatric examination of the defendant is subject to the sound discretion of the trial court and the ruling of the trial court will not be disturbed unless clearly wrong. Evidence that such examination is needed must be presented to the trial court before the granting of such motion is justified.

3. 'The order of evidence and the time of its introduction, and whether a party shall introduce more evidence after that of the adverse party, are matters within the discretion of the trial court, and its exercise will rarely be ground of reversal.' Point 4, syllabus, Wills v. Montfair Gas Coal Co., 104 W.Va. 12, 138 S.E. 749.

4. A variance in the pleading and the proof with regard to the time of the commission of a crime does not constitute prejudicial error where time is not of the essence of the crime charged.

5. The sentence for the crime of armed robbery must be for a definite term of not less than ten years and the imposition of an indeterminate sentence of from ten years to life for such crime constitutes error.

James E. Ansel, Moorefield, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Willard A. Sullivan, Richard E. Hardison, Asst. Attys. Gen., for defendant in error.

BERRY, Judge.

This is an appeal from a final judgment of the Circuit Court of Pendleton County of May 4, 1971 which sentenced the defendant, Paul E. Chaffin, to serve an indeterminate sentence of from ten years to life in the West Virginia State Penitentiary after being convicted by a jury of the crime of armed robbery.

The defendant was jointly indicted with two other men for armed robbery, but was tried separately. The three men who were jointly indicted in this case apparently escaped from the state penitentiary at Moundsville, West Virginia and stole a car which they drove to Pendleton County where it was abandoned as a result of mechanical failure. On December 28, 1970 the three men went into an automobile body shop owned by Pennington B. Keiser, also known as Tony Keiser, where they threatened both the owner and his brother, Watson Keiser, with a pistol, tied them both up, took a wallet belonging to Watson Keiser, left both men in the restroom of the body shop and stole the automobile belonging to Pennington B. Keiser. Both of the men freed themselves and called the police. The three men were later apprehended the same day in Harrisonburg, Virginia.

On the day this case was set for trial the defendant's counsel moved for a continuance because one of the defendant's witnesses, Gary L. Hammack, who had been jointly indicted with the defendant, was not present. This witness was in the West Virginia State Penitentiary at the time of the trial, and would have testified, according to the defendant, that the defendant was not in the State of West Virginia on December 27, 1970, the date alleged in the indictment that the crime occurred. The defendant's motion for a continuance was overruled by the trial court.

The defendant's attorney also made a motion for a continuance for the purpose of having the defendant undergo a psychiatric examination. This motion was also overruled by the trial court.

The case proceeded to trial and after completing the evidence on behalf of the state the prosecuting attorney stated: 'The State rests.' Immediately after resting the state's case the prosecuting attorney asked permission of the court to recall two of the state's witnesses. The attorney for the defendant objected to the recalling of the witnesses on the grounds that the state had rested its case and could not recall the witnesses. The defendant's objection was overruled, and the witnesses who had previously testified on behalf of the state testified that they had made an error when they testified originally that the robbery occurred on December 27, 1970 and that it actually occurred on December 28, 1970.

After the completion of the evidence the defendant's attorney moved for a directed verdict on the grounds that there was a material variance in the indictment and the evidence introduced by the state in that the indictment alleged the crime occurred on December 27, 1970 and the proof was that the crime occurred on December 28, 1970. This motion was overruled.

Ten assignments of error are listed on behalf of the defendant but they can be consolidated into four assignments because of repetition or abandonment. The errors assigned are the overruling of the two motions for a continuance, the overruling of the motion for a directed verdict because of the variance between the pleading and proof, and the indeterminate sentence of from ten years to life.

The motions for a continuance on the grounds of the absence of a material witness and the need for a psychiatric examination of the defendant are not well taken. Due diligence had not been exercised to secure the presence of the witness. The motion was made when the case was called for trial and no summons had been issued nor any attempt made to obtain the witness' presence. See Code, 53--4--13. Furthermore, the testimony that the witness would have allegedly given was not material. It was stated that the witness would testify that the defendant was not in the state on December 27, 1970. However, the crime was committed on December 28, 1970. A motion for a continuance based on the absence of a material...