State v. Cirullo, 10763

CourtSupreme Court of West Virginia
Citation142 W.Va. 56,93 S.E.2d 526
Docket NumberNo. 10763,10763
PartiesSTATE of West Virginia v. John CIRULLO.
Decision Date26 June 1956

Syllabus by the Court.

1. 'The provision of Section 2, Article 2, Chapter 52, Code, 1931, that the jury commissioners 'shall, at the levy term of the county court each year, and at any other time when required by the court which appointed them, or the judge thereof in vacation, prepare a list of not less than one hundred nor more than two hundred qualified persons of their county, for grand jury service,' in requiring the preparation of such list, is mandatory and strict compliance with that requirement is essential to the selection of a lawful grand jury, but, in specifying the time at which such list is to be prepared and the maximum number of qualified persons whose names are to be placed upon it, the provision is directory and substantial compliance with those requirements is sufficient in the selection of a lawful grand jury.' Point 2, syllabus, State v. Carduff, ---- W.Va. ---- , decided at this term of this Court.

2. The failure of the jury commissioners of a county to prepare the list of persons qualified for grand jury service during the annual levy term of the county court and the delay of one hundred and twelve days after the adjournment of the levy term in preparing the list do not render the grand jury selected from such list an unlawful or improperly constituted grand jury or vitiate the indictment returned by such grand jury when the persons selected for grand jury service are competent and qualified for such service and the foregoing action of the jury commissioners does not result in any prejudice to any right of the defendant.

3. 'On an indictment for unlawfully selling spirituous liquors without a state license therefor, it is not incumbent on the state to prove that defendant had no license to sell. If a sale be proven, it is presumed to have been made without license, and, to justify it, defendant must produce his license.' Point 1, syllabus, State v. Tygarts Valley Brewing Company, 71 W.Va. 38 .

4. An instruction which is not sustained by evidence should not be given.

5. Duplication of instructions is neither necessary nor desirable.

6. Remarks of a prosecuting attorney in his argument to the jury expressing his personal opinion of the guilt of the defendant and urging the jury to return a verdict of guilty against the defendant in a criminal case, which are not disclosed by the record but are assigned as error by the defendant, can not be considered or reviewed upon writ of error.

7. 'Failure to make timely and proper objection to remarks of counsel made in the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise the question thereafter either in the trial court or in the appellate court.' Point 6, syllabus, Yuncke v. Welker, 128 W.Va. 299 .

8. 'Where there is an exception to the ruling of the trial court, for allowing or refusing to allow a question to be answered by a witness, and it does not appear what the answer was, or what was expected to be proved by him, an appellate court will not consider the exception, as it cannot determine the relevancy, admissibility, or value of the answer or expected answer. If the question alone show that its answer must be material, and it is refused, it is different. If an answer is stricken out, it must appear, else it will not be considered.' Point 3, syllabus, Kay v. Glade Creek and Raleigh Railroad Company, 47 W.Va. 467 .

9. When the fact of guilt or innocence depends on the conflicting evidence of witnesses to the crime, the jury is the sole judge of the weight and the credibility to be given to their testimony.

10. 'In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the accused beyond a reasonable doubt, though the evidence adduced by the accused is in conflict therewith. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.' Point 1, syllabus, State v. Bowles, 117 W.Va. 217 .

Paul A. Poulicos, Clarksburg, for plaintiff in error.

John G. Fox, Atty. Gen., Harold A. Bangert, Jr., Asst. Atty. Gen., for defendant in error.


At the March Term, 1954, of the Criminal Court of Harrison County, the defendant, John Cirullo, was indicted for a misdemeanor by a grand jury of that county then attending that term of the court. The indictment charged that the defendant, in November 1953, 'and within one year prior to the finding of this indictment, in the said County of Harrison, did unlawfully, without a state license and without authorization under the Liquor Control Act, sell to one Clarence Neil Davis a quantity of alcoholic liquor, to-wit, one (1) drink of Calvert's Reserve Blended Whiskey for the price of sixty cents (0.60); against the peace and dignity of the State.'

To the indictment the defendant filed a plea in abatement by which he challenged the validity of the indictment on the ground that the grand jury which rturned it was not a legally constituted grand jury and the defendant insists that for that reason the indictment is void. The trial court sustained the demurrer filed by the State to the plea in abatement. The defendant then filed his plea of not guilty.

The jury returned a verdict of guilty as charged in the indictment against the defendant. The trial court overruled the motion of the defendant to set aside the vedict and to grant him a new trial and, by final judgment entered April 10, 1954, sentenced the defendant to be confined in the jail of Harrison County for a period of one year and to pay a fine of five hundred dollars and costs. On March 12, 1955, the Circuit Court of Harrison County refused to grant a writ of error and supersedeas to the judgment of the criminal court; and on September 12, 1955, this Court granted a writ of error and supersedeas to the foregoing judgment of the circuit court upon the application of the defendant.

On Saturday, November 21, 1953, from about seven forty five o'clock in the evening until about eleven o'clock that night, Clarence Neil Davis, the prosecuting witness, a newly appointed deputy sheriff of Harrison County upon whose testimony the indictment was found, in company with two other deputy sheriffs, Elmo Taggert and Sam Fury, all of whom were dressed in plain clothes, was engaged in patrolling in an automobile the roads in Harrison County. Davis testified that while so engaged he left the automobile and the two other deputies at a place known as the Carnation Plant located on old U. S. Route No. 50 in Harrison County; that when he left them the two deputies agreed that they would meet him later during the evening; that he then went to a nearby tavern and dance hall called the Skylark Club; that after he entered the club about ten thirty o'clock that night he saw the defendant and another man behind the bar and three other persons at the bar; that he had a conversation with the defendant and asked him about a square dance which apparently was held at the club each Saturday night and was told by the defendant that the dance would not start until after midnight; that he then asked the defendant if he sold whisky and the defendant replied 'That is my business.'; that Davis ordered a drink of Calvert Reserve Whisky and a 'seven-up chaser' which were sold to him by the defendant and for which Davis paid the defendant sixty cents; that immediately after Davis had taken that one drink he left the club; that his visit there had lasted less than thirty minutes; that after he departed from the club he rejoined the other two deputy sheriffs at a bus station; and that they then went to Clarksburg where they arrived at about ten forty five o'clock that night.

Deputy Sheriff Fury, the only other witness produced by the State, testified that he was with Davis and Taggert in the automobile in which they were patrolling the roads in Harrison County on the night of November 21, 1953; that none of them had drunk any alcoholic liquor before Davis went to the Skylark Club; and that when Davis rejoined them after his visit to the club the witness detected an odor of alcoholic liquor on his breath. Deputy Sheriff Taggert was ill at the time of the trial and did not appear as a witness.

Three witnesses in behalf of the defendant, Girard, Boothe and Germont, who were employed by the defendant at the Skylark Club on Saturday nights, testified that they were present in the club on the night of November 21, 1953, both before and after the dance began; that the defendant usually did not come to the club until about midnight; that the defendant was in the club that night but that he was not behind the counter at any time until long after midnight; and that they did not see Davis in the club at any time that night.

The defendant did not testify as a witness in his own behalf. He was not arrested by Davis at the time of the sale of the whisky on November 21, 1953, and he was not indicted for that offense until March 3, 1954.

The defendant assigns as error the action of the trial court: (1) In sustaining the demurrer to the plea in abatement; (2) in giving, over the objection of the defendant, Instructions Numbers 1 and 2 offered by the State; (3) in refusing to give Instructions Numbers 1, 5, 7, 9, 13, 19, and 20, offered by the defendant; (4) in permitting the prosecuting attorney in his argument to the jury to express his personal pinion of the guilt of the defendant and to urge the jury to return a verdict of guilty, and in permitting the prosecuting attorney to make certain comments concerning the failure of the defendant to disclose his presence in court, his...

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