State v. Criss

Citation23 S.E.2d 613,125 W.Va. 225
Decision Date15 December 1942
Docket Number9338.
PartiesSTATE v. CRISS.
CourtSupreme Court of West Virginia

John C. Southern, of Clarksburg, for plaintiff in error.

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

ROSE Judge.

Upon a conviction of grand larceny, accompanied by a finding that he had twice before been sentenced to the penitentiary in the United States, the Criminal Court of Harrison County sentenced George W. Criss to the penitentiary for life. The Circuit Court of that county declined to review the case, and we granted this writ of error.

The indictment charged that the defendant "George W. Criss alias George LeMarr, alias T. H. Mitchell, alias Joseph Harry Mitchell" had been theretofore, in the United States, indicted, arraigned, tried, convicted and sentenced on three prior felonies, following which he, on the -- day of February, 1941, in the County of Harrison "one reel of approximately three hundred feet of No. 2 parallel duplex wire cable wound on simplex wood reel of the approximate value of Fifty Dollars, ($50.00), of the goods chattels, effects and property of Consolidation Coal Company a corporation, unlawfully and feloniously did steal, take and carry away, ***."

To this indictment, the defendant interposed a demurrer based on eleven grounds, and at the same time filed a motion to quash the indictment, assigning the same grounds. Both the demurrer and motion to quash were overruled. After the denial of a motion for a continuance, a trial to a jury was had, resulting in a verdict of "guilty as charged in the within indictment". A motion to set aside the verdict, assigning eighteen grounds, and a motion in arrest of judgment based upon three grounds, were made and overruled, and the defendant was sentenced to the penitentiary for the term of his natural life.

An application made to the Circuit Court of Harrison County for a writ of error, assigning eleven grounds, was denied, after which, in a petition to this Court, based on fifteen alleged errors, the case was brought here on writ of error. Of this multitude of assigned errors strewn throughout the record, most appear to have been abandoned, some insisted upon seem without merit, but others require serious consideration.

It is at once apparent that there must be a reversal in this case. The record before us discloses that upon the trial, copies of the former indictments in Webster County and in New Mexico were read to the jury. This alone constitutes reversible error. State v. Stout, 116 W.Va. 398, 180 S.E. 443. Also, instruction No. 1, given on motion of the State was as follows:

"The Court instructs the jury that if you believe by all the evidence in this case, beyond a reasonable doubt, that the defendant, George W. Criss, at the time and place mentioned in the evidence, either alone or with Claude R. Rice, stole, took and carried away the reel of wire and spool mentioned and described in the evidence and belonging to the Consolidation Coal Company, a corporation, and if you further believe, beyond a reasonable doubt, that said property was of a greater value than $20.00, then you should find the defendant, George W. Criss, guilty as charged in the indictment in this case."

This was equally erroneous, since it did not require a finding that the defendant had been previously sentenced to the penitentiary in the United States in order to return a verdict of "guilty as charged in the indictment in this case." State v. Cline, W.Va., 22 S.E.2d 871, decided November 17, 1942. But more fundamental questions are raised.

At the threshhold of the case stands the indictment, the sufficiency of which is duly challenged. It purports to charge, not only a present offense of grand larceny, but also to assert that the defendant had theretofore been convicted of three other felonies within the United States as follows: (1) In 1924, in the United States District Court of New Mexico for the transportation of a stolen motor vehicle in interstate commerce, to which he is alleged to have pleaded guilty, and on which he was sentenced to the penitentiary for two years; (2) in 1926, in the Circuit Court of Webster County, West Virginia, for bank robbery, on trial and conviction for which, he was sentenced to the penitentiary for twenty-five years; and (3), in the District Court of the County and City of Denver in the State of Colorado, for armed robbery, to which he pleaded guilty and was sentenced to the penitentiary of that State for a period not exceeding life nor less than ten years.

The indictment contained a purported copy, in haec verba, of each of these three former indictments, together with the substance of the subsequent orders showing arraignment, trial, conviction and sentencing. The setting out in full in the present indictment of these former indictments is assigned as error.

This form of indictment has been subject to the strongest disapproval by this Court, but has never been definitely held to be bad. The statute on which it is based does not require this degree of elaboration and emphasis of the former convictions. The statute is as follows:

(18) "When any person is convicted of an offense, and sentenced to confinement therefor in the penitentiary, and it is alleged in the indictment on which the person is convicted, and admitted, or by the jury found, that the person had been before convicted in the United States of a crime punishable by imprisonment in a penitentiary, the court shall, if the sentence to be imposed is for a definite term of years, add five years to the time for which the person is or would be otherwise sentenced. Whenever in such case the court imposes on indeterminate sentence, five years shall be added to the maximum term of imprisonment otherwise provided for under such sentence."

(19) "When any such convict shall have been twice before convicted in the United States of a crime punishable by confinement in a penitentiary, the person shall be sentenced to be confined in the penitentiary for life. But before such sentence may be lawfully imposed, it must be alleged in the indictment on which the person is convicted, and admitted, or by the jury found, that such convict had theretofore been twice so convicted." Code 61-11-18, 19, as amended by Chapter...

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