State v. Crowder

• Decision Date: 21 November 1961
• Docket Number: No. 12091,12091
• Citation: 146 W.Va. 810,123 S.E.2d 42
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. E. T. CROWDER.

Page 42

123 S.E.2d 42

146 W.Va. 810

STATE of West Virginia v. E. T. CROWDER.

No. 12091.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 26, 1961.

Decided Nov. 21, 1961.

Syllabus by the Court

1. The interpretation and meaning of a statute is always aided by a consideration of the former statute.

2. The facts necessary to constitute perjury always include false swearing, but the converse is not true since the separate statutory offense of false swearing in many instances does not include perjury.

3. Statements or testimony of any person made under oath as a witness before a grand jury or any other investigation authorized by law wherein the witness told the truth and admitted the commission of a crime cannot be admitted in evidence in a prosecution of the witness for such crime.

4. The exception contained in Code, 57-2-3, that evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination except in a prosecution for perjury, relates to false swearing, whether it is in connection with a felony [perjury] or a misdemeanor [false swearing], and such evidence may be used against the accused in a criminal prosecution for such crimes.

5. The rule requiring the entire record of a former trial in which perjury is alleged to have occurred to be introduced in a criminal trial for such perjury unless portions thereof are omitted with the consent of the accused, refers to a former trial in which formal rules of evidence are adhered to and no improper evidence would be included in the former trial record or at least the opportunity to object to the admission of such improper evidence has been afforded. In a trial for false swearing before a grand jury, it having been an ex parte proceeding, the portions of the grand jury record which are immaterial, irrelevant, and have nothing to do with the issue of false swearing should not be admitted where they may prejudice the accused or throw no light on his innocence.

6. In order to convict a person of false swearing it must be shown by the evidence that the accused intended to testify falsely and that the alleged false swearing was done wilfully, knowingly and positively. There must have been a positive statement made with regard to the false swearing.

7. It is a fatal variance when the indictment charges the commission of an offense by an accused acting in a specific capacity which is an ingredient of the offense and the proof shows that he was acting in an entirely different capacity.

8. If an indictment alleges that an offense was done in a particular way, the proof must support such charge or there will be a fatal variance. However, if such averment can be omitted without affecting the charge in the indictment against the accused, such allegation may be considered and rejected as surplusage if not material.

9. In a prosecution for perjury or false swearing the state must not only prove the defendant guilty beyond a reasonable doubt, the same as in any other criminal case, but circumstantial evidence alone is not sufficient to sustain such a conviction. There must be positive and direct proof before an accused can be convicted of such offense.

10. It is necessary, in order to convict an accused of false swearing, that such false swearing be established by the testimony of at least one witness knowing the falsity of the statement, and that other facts or circumstances corroborate such witness if he cannot be corroborated by another witness.

Dayton, Campbell & Love, Charles R. McElwee, Charleston, for plaintiff in error.

C. Donald Robertson, Atty. Gen., Andrew J. Goodwin, Asst. Atty. Gen., Charles M. Walker, Pros. Atty., Kanawha County, Charleston, for defendant in error.

BERRY, Judge.

The defendant, E. T. Crowder, was indicted for false swearing, a misdemeanor, at the April, 1959, term of the Grand Jury of the Intermediate Court of Kanawha County, West Virginia, said false swearing being alleged to have been committed by the defendant while testifying before said Grand Jury.

The defendant was convicted in the Intermediate Court of Kanawha County, West Virginia, of this charge, and on August 19, 1959, was fined $500.00 and sentenced to serve a term of twelve months in the Kanawha County Jail. On appeal to the Circuit Court of Kanawha County, his conviction was affirmed on September 14, 1960. Upon appeal to this Court, a writ of error and supersedeas to the judgment of the Circuit Court of Kanawha County was granted on December 20, 1960.

The alleged false swearing arose out of certain statements made by the defendant before the grand jury which was investigating the relationship of W. S. Webb, a former member of the Department of Public Safety, and Harold Harbin, an alleged gambler and owner and operator of an establishment in South Charleston known as 'The Jeep', which establishment had a reputation among law enforcement officers as being a center for gambling activities.

A raid was made on 'The Jeep' by the South Charleston Police on March 13, 1959, under the authority of a search warrant, at which time several checks were found. In addition to the checks, which amounted to approximately $18,000.00, given by Webb to Harbin, a note in the amount of $15,000.00 was found. This note was signed by Webb and the defendant, Crowder, as makers, and made payable to Webb, who was at the time the note was made, and as stated hereinabove, a member of the Department of Public Safety with the rank of sergeant. The defendant Crowder at that time was president of a firm known as the Crowder Motor Company, a corporation, a Chrysler automobile agency located in South Charleston, West Virginia.

S. C. Ballard, a captain in the Department of Public Safety, stationed at Beckley at that time, was called into Kanawha County and made an investigation in connection with the information obtained during the raid on 'The Jeep'. He afterwards made a report to the prosecuting attorney of Kanawha County which resulted in the grand jury investigation with regard to the relationship between Webb and Harbin. Ballard testified before the grand jury in connection with this matter and recommended that the defendant be subpoened and interrogated by the grand jury in connection with such relationship.

The defendant Crowder was subpoened and appeared before the grand jury during its investigation of Webb and Harbin. He admitted, when questioned by the grand jury, that he had contacted the prosecuting attorney of Kanawha County at the request of Webb, who had asked that Crowder protect him by attempting to leave the impression with the prosecuting attorney that he was getting the money through Webb, which money appeared to have gone from Harbin to Webb, and that he was repaying the money to Harbin through Webb. The defendant admitted before the grand jury that he attempted to leave a false impression, or failed to tell the truth to the prosecuting attorney at that time, and he stated to the grand jury that he had never obtained any money from Harbin through Webb.

During Crowder's conversation with the prosecuting attorney, he learned that he was involved in the investigation of Webb and Harbin as a result of the note with his name signed thereto having been found in the raid on 'The Jeep.' The defendant's explanation which he gave to the grand jury with regard to the note was that he signed the note with Webb with the understanding that it was to be used as security for Webb in an attempt to purchase the interest of some heirs in family real estate. The note apparently was to be sent to W. C. Webb, a relative of W. S. Webb, and a bank official in Florida, and was to be applied to the sale price of the real estate, out of which Webb expected to make a profit. The note was dated April 2, 1958, but Crowder stated that he did not sign it until the fall of 1958, and that when he did sign it the name of the payee did not appear on the note. The property in question was supposed to be located in Mingo County, West Virginia.

Crowder stated that he prepared a 'declaration of trust' on Webb's house, which was already subject to a prior lien, as security for being a co-maker of the note. He further stated that Webb told him that the deal had fallen through, and that he, Webb, had destroyed the note, at which time Crowder gave the 'declaration of trust' to Webb, who in turn destroyed it.

Crowder told the grand jury that Webb had admitted to him that he had told a false story regarding the manner in which the money was obtained from Harbin when he (Webb) stated that Crowder was getting it, and that Webb advised him the note was given to Harbin as collateral for borrowed money.

Webb's testimony before the grand jury was not introduced during the trial of Crowder for false swearing, and is not contained in the record of this case. However, after Crowder was asked questions pertaining to the note signed by him and Webb, the prosecuting attorney and grand jurors questioned him with regard to Webb's statements, or statements relating to Webb, such as whether he lived beyond his income and why Crowder had so much confidence in him, as indicated in the transactions totaling thousands of dollars. One of the grand jurors then asked the defendant if he had to pay for automobiles at the time they were received from the Chrysler factory. This question resulted in a line of questioning dealing with the automobile business by the prosecuting attorney in which it was developed that most dealers do not have sufficient capital with which to pay for automobiles as they are delivered, and said automobiles are obtained under what is known as a 'floor plan', which is merely a plan where a finance company or financial institution pays the factory for the automobiles and obtains a lien on them. When the automobiles are sold the dealers are then supposed to pay the finance company or lender of the money. Defendant stated that he used this plan in ninety percent...