State v. Cline

• Decision Date: 17 November 1942
• Docket Number: 9378.
• Citation: 22 S.E.2d 871,125 W.Va. 63
• Parties: STATE v. CLINE.
• Court: West Virginia Supreme Court

22 S.E.2d 871

125 W.Va. 63

STATE v. CLINE.

No. 9378.

Supreme Court of Appeals of West Virginia.

November 17, 1942

Syllabus by the Court.

In prosecution for carrying a revolver without a license, it is the jury's province to weigh the facts and circumstances presented as to possession of pistol and to render its verdict accordingly. Code 1931, 61-7-1.

In prosecution for carrying a pistol without a license, where indictment specifically referred to prior conviction as well as subsequent offense, it fully apprised defendant of its purpose and facts to be established, and specific allegation that carrying upon which indictment was based was a second offense was unnecessary. Code 1931, 61-7-1.

"Second offense," as used in statute punishing second conviction of carrying a pistol as a felony and requiring prosecuting attorney to introduce the record evidence before trial court of such second offense, means the prior conviction, for there could be no record evidence of later offense, although properly speaking the "second offense" is the one last occurring chronologically. Code 1931, 61-7-1.

In prosecution for second offense of carrying a pistol without a license under statute requiring proof of former conviction by "record evidence," production of indictment and order showing conviction and sentence was sufficient. Code 1931, 61-7-1.

In prosecution for second offense of carrying pistol without a license, under statute requiring prosecuting attorney to introduce record evidence of prior conviction, defendant could not complain that only indictment and order showing conviction and sentence upon former prosecution were introduced, since no prejudice resulted. Code 1931 61-7-1.

In felony prosecution under indictment charging a second offense of carrying a pistol without a license, the giving of a binding instruction which, by failure to refer to prior conviction, defined conduct constituting a misdemeanor and which authorized jury to find defendant guilty as charged if they believed the factual premises was prejudicial error. Code 1931, 61-7-1.

In the prosecution for a second offense under Code, 61-7-1, it is reversible error to give, over objection, a binding instruction which authorizes the jury to find the accused guilty of a felony, without requiring a finding on an allegation of a prior conviction contained in the indictment.

G. L. Counts, of Welch, and D. L. Auvil of Iaeger, for plaintiff in error.

William S. Wysong Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen for defendant in error.

LOVINS Judge.

I. S. Cline was indicted for a felony by a grand jury in McDowell County, the indictment charging that Cline was convicted, fined and sentenced to confinement in the McDowell county jail, in October, 1939, by the Criminal Court of McDowell County, upon an indictment for carrying a revolver without a license, and, further, that Cline committed the same offense in June, 1941. After a demurrer to and motion to quash the indictment had been overruled, a jury trial was had upon the defendant's plea of not guilty, which resulted in a verdict of guilty "as charged in the indictment". To the judgment of the criminal court overruling a motion to set aside the verdict and sentencing Cline to confinement in the state penitentiary for a term of one to five years, Cline petitioned for a writ of error in the Circuit Court of McDowell County. The circuit court found no error in the judgment of the criminal court and affirmed the same as plainly right.

It appears from the record that Cline had a pistol in his possession on the evening of June 23, 1941, when he engaged in an altercation with Vivian Keaton. Cline does not deny the fact that he had no license to carry a revolver. He testified that, as Justice of the Peace for Sandy River District in McDowell County, the pistol came into his possession in connection with a shooting affray some months prior to the altercation herein involved, and that he had kept the same in his office until the evening in question, when he was taking it home for safe-keeping because a window had been broken out of his office. Cline states that Keaton "raised a racket" with him when he was on the way to his home and the pistol made its appearance in the ensuing struggle. Keaton testified that Cline struck him with the gun, while Cline says that it fell from his belt when he hit Keaton with his fist. The statute upon which this prosecution was based contains no provision that the carrying of the pistol must be with unlawful intent. State v. Edgell, 94 W.Va. 198, 118 S.E. 144. Therefore, we believe it was the jury's province to weigh the facts and circumstances presented as to the possession of the pistol and to render its verdict accordingly.

Code 61-7-1, provides that a person who carries about his person a pistol without a state license therefor shall be guilty of a misdemeanor, and upon second conviction for the same offense in this State, such...