State v. Clay, 10307
| Decision Date | 13 March 1951 |
| Docket Number | No. 10307,10307 |
| Citation | 135 W.Va. 618,64 S.E.2d 117 |
| Parties | STATE, v. CLAY. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. On the trial of an indictment returned under Section 5, Chapter 105, Acts of the Legislature, 1935, wherein the property destroyed by fire is alleged to have been the property of the wife of the defendant named in the indictment, such wife may not be called or required to testify in the case without the consent of the husband. The language 'offense committed by one against the other' as used in Code 57-3-3, does not include the offense covered by Section 5, Chapter 105, Acts of 1935, aforesaid.
2. In a trial of a criminal case, where a verdict of guilty as charged in the indictment is returned against the defendant, and which verdict is based solely on circumstantial evidence, such evidence must be of such character and force as to exclude, beyond all reasonable doubt, every reasonable hypothesis of innocence.
F. F. Scaggs, Wayne, for plaintiff in error.
William C. Marland, Atty. Gen., George W. Stokes, Asst. Atty. Gen., for defendant in error.
FOX, President.
At the March term, 1950, of a Grand Jury of Wayne County, an indictment was returned against James Clay, under the provisions of Code, 61-3-5, charging that on the 11th day of December, 1949, in said county, he did then and there wilfully, maliciously, feloniously and unlawfully set fire to and cause to burn certain chattels and personal property, to wit: a certain lot of household and kitchen furniture and other articles used in housekeeping, the personal property of Exa Clay, and specifically enumerated in the indictment, with intent then and there to injure and defraud certain insurance companies, named in the indictment, by virtue of certain policies of insurance issued to the said James Clay, which policies were on said date in full force and effect. On April 3, 1950, a demurrer was interposed to the said indictment, and overruled. The case was then tried before a jury, resulting in a verdict that: 'We the jury agree and find the defendant guilty as charged in the within indictment.' A motion to set aside the said verdict, and grant a new trial, was made on April 5, 1950, and overruled, and on the same day he was sentenced to the penitentiary of this State at hard labor for the full term of one to five years. To this judgment this Court, in July 3, 1950, granted this writ of error.
The errors assigned in the petition for a writ of error may be stated as follows: (1) Error in overruling defenant's demurrer to the indictment; (2) error in permitting Exa Clay, wife of the defendant, to testify as a witness against him; (3) error in permitting Exa Clay to testify as to certain nonsupport proceedings involving James Clay, her husband; (4) error in refusing to set aside the verdict of the jury on the grounds of variance between the allegations and proof, and on the further ground that illegal, inadmissible evidence was permitted to be introduced by the State, over the objection of petitioner; (5) in refusing to set aside the verdict of the jury, and grant the defendant a new trial on the ground that the State wholly failed to introduce any evidence connecting the petitioner with the crime charged; and (6) for the errors apparent upon the face of the record.
The questions raised by these assignments of error cannot be answered without referring to a number of acts and circumstances which may or may not be important to a decision on this writ of error. The defendant and Exa Clay were husband and wife, and at one time lived in a three room cottage on land owned by R. L. Drown in Wayne County, and apparently lived there for some years. It appears that they had accumulated some houshold furniture and equipment, and had, in connection therewith, incurred certain indebtedness. About February, 1948, a rift in their domestic relations seems to have developed, and Exa Clay had a nonsupport warrant issued against her husband, on which a hearing was held, and James Clay was required to pay to Exa Clay $25 a month for the support of herself and the child born of the marriage between Exa Clay and James Clay. At that time, the evidence discloses that there was an attempt to divide some of the personal property located in the building in which they then resided, and an assumption by James Clay of certain indebtedness, and by Exa Clay of other indebtedness. In the trial on the indictment, one of the questions supposed to be involved was the ownership of the destroyed property described in the indictment. Evidence was introduced in the case for the evident purpose of qualifying Exa Clay as a witness against her husband in the trial of the indictment. We can see no other reason why that proceeding had any bearing whatever on the guilt or innocence of James Clay of a wrongful act allegedly committed more than a year and a half later.
Said parties did not thereafter live together as husband and wife. Exa Clay remained in the Drown house, and James Clay made his headquarters, and probably lived, with his mother in a house located some six or seven hundred yards from the Exa Clay house.
The next thing that happened was on September 13, 1949, when James Clay procured in his name from the Camden Fire Insurance Association, a fire insurance policy in the amount of $2,000 on the household property located in the cottage in which Exa Lcay, his wife, then lived, but representing it to be his own. On September 20, 1949, he procured a similar policy from the Glen Falls Insurance Company, in the amount of $1,500, which convered the same property; and on November 28, 1949, he procured, from the Homeland Insurance Company of America, a like policy, in the sum of $1,500, making an aggregate of $5,000, and all of which policies were in force and effect on December 11, 1949. The evidence is that the property covered by these insurance policies was worth approximately $1,000, and after the fire, charged in the indictment, the defendant attempted to collect on these policies, and made an estimate of the property covered by said policies as worth $3,000. It is unnecessary to go into detail, but it is quite apparent that in his attempt to collect on these policies, defendant grossly overestimated the value of the property insured.
A short time after he had obtained these policies of insurance, Exa Clay instituted some character of proceeding to require James Clay to comply with the order of the justice of the peace in relation to the nonsupport charge, aforesaid, and on the 10th of December, 1949, Clay was served with a summons in that proceeding. That same afternoon Clay visited the home of Exa Clay, apparently in connection with the summons that had been served on him. While there he made some remark about getting rid of his wife, and she says punched her in the ribs; and then left the Exa Clay home in the direction of his own home. A little later a number of shots were fired from the direction in which James Clay had gone, some of said shots striking the Exa Clay home, causing her to be alarmed for the safety of herself and the children, and causing her to get her children together and go to the home of a relative. She testifies that before leaving her home she disconnected the electricity; that there was no fire in the kitchen; but that she left a coal fire burning very low in a stove in another room in the said building. Between 6:00 and 7:00 o'clock in the afternoon of December 11, the building was seen to be burning, and persons passing it went to the window and saw the fire burning inside the building all around the rooms from the foor upwards. A witness, A. W. Smith, who had some experience in connection with fires, testified: 'If never saw one burn exactly like that where they caught fire from my experience.', and: 'You generally see it in one location.' Smith's testimony is corroborated by that of Joe Furguson. One witness testifies that he saw the defendant at his mother's home about 4:15 on the Sunday evening before Christmas. This witness says that he was at the home of James Clay on two Sundays before Christmas, and that on one of said dates James Clay was present, and on the other date he was not. This makes his testimony of no value.
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