State v. Davis

• Citation: 153 W.Va. 742,172 S.E.2d 569
• Decision Date: 03 March 1970
• Docket Number: No. 12853,12853
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. Waldon Keith DAVIS.

Page 569

172 S.E.2d 569

153 W.Va. 742

STATE of West Virginia v. Waldon Keith DAVIS.

No. 12853.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 3, 1970.

Decided March 3, 1970.

Syllabus by the Court

1. Under the law of this state, a court, in which an indictment for a felony is pending, has no lawful authority to enter an order requiring payment from public funds of the expense of employing an attorney residing in another state to take the deposition of a witness residing in that state to be used as testimony in behalf of the accused at a trial upon such felony indictment or, in the alternative, to enter an order to require compensation to be paid from public funds to a resident trial attorney for his service in going to the state of the residence of the witness and there taking the deposition of the witness to be used in behalf of the accused at a trial upon such felony indictment.

2. Under the law of this state, a person tried upon an indictment charging a felony must be present personally at all stages of his trial from the time of the arraignment to and including the pronouncement of the judgment of sentence pursuant to a jury verdict by which the accused person is found guilty of the charge contained in the indictment, but his presence is not required subsequently when the trial judge, by his signature, directs the entry and recordation of an order which recites the trial proceedings.

3. When an arresting officer has in his custody one suspected of having committed a crime and, before commencement of any interrogation, the officer, in apprising the accused of his constitutional rights, advises him that any statement he may make 'may be' used against him at a subsequent trial, it is not necessary, in order to render admissible in evidence a confession of guilt subsequently made by the accused, that the officer shall also tell the accused that any statement which may be made by him 'will be' used against him upon a subsequent trial.

4. An identification of the defendant by a witness in court during a trial upon a criminal charge is not inadmissible or otherwise improper merely because the identifying witness saw and identified the same person while he was in custody of arresting officers a short time after the commission of the crime and while he was being held merely as a suspect, before proceedings against him had reached an accusatory stage.

5. A verdict of guilty in a criminal case will not be reversed by this Court because of error committed by the trial court, unless the error is prejudicial to the accused.

6. As a general rule, no party may assign as error the giving of an instruction unless he objects thereto before the arguments to the jury are begun, stating distinctly as to the instruction the matter to which he objects and the grounds of his objections; and ordinarily only grounds thus assigned in the trial court will be considered on appeal of the case to this Court.

7. In a criminal case, a verdict of guilty 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 guilty 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.

Steptoe & Johnson, Carl F. Stucky, Jr., Charleston, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., George E. Lantz, John Troelstrup, Willard A. Sullivan, Asst. Attys. Gen., Charleston, for defendant in error.

CALHOUN, Judge.

This criminal case is before the Court on a writ of error and supersedeas granted to an order of the Circuit Court of Kanawha County entered on March 14, 1969, by which that court, sitting as an intermediate appellate court, refused to grant an appeal and supersedeas to an order entered by the Intermediate Court of Kanawha County on September 26, 1968, by which judgment was entered on a jury verdict finding Waldon Keith Davis, the plaintiff in error, guilty as alleged in a joint indictment which charged Waldon Keith Davis and his brother, Gary Wayne Davis, with a crime defined in Code, 1931, 61--2--12, as amended, which is commonly referred to as armed robbery. By its final judgment order entered on the jury verdict, the trial court sentenced Waldon Keith Davis to confinement in the penitentiary of this state for a period of thirty years.

The joint indictment against Waldon Keith Davis and his brother, Gary Wayne Davis, charges that they, being armed with a pistol, made an assault upon Walter R. Lawman and consequently stole United States currency in the sum of $505 which had been entrusted to Lawman as an agent, servant and employee of Elk Finance and Loan Company, a corporation.

Alfred Runnion testified that on October 10, 1967, he transported two men in his taxicab from Nitro to Charleston, West Virginia, and that the two men alighted from the taxicab about noon at the corner of Tennessee. Avenue and Washington Street, West, which is in the general area in which Elk Finance and Loan Company is located. The witness identified the defendant in court as one of the two persons who had been transported by him. Gary Wayne Davis, testifying as a witness in behalf of his brother in this case, stated that he was the other passenger in the taxicab on the occasion in question.

Walter R. Lawman testified that he operates Elk Finance and Loan Company; that he is one of the owners of that corporation; that at about 2:15 p.m., on October 10, 1967, two young men came into his place of business and stated that they wanted to confer with the witness concerning a proposed loan; that Houston Harold Gunter came into the place of business thereafter and renewed a loan; that one of the two young men, subsequently identified by both Lawman and Gunter at the defendant, came to the counter where the loan to Gunter was being made and had a conversation with Gunter; and that the defendant was wearing dark glasses.

The defendant and his brother were identified in court by Lawman as the two young men who committed the robbery. Lawman testified that the defendant held a pistol within two feet of the face of the witness and demanded that he open the cash drawer; that the brother of the defendant knocked the witness to the floor; that the defendant, still brandishing the pistol in a threatening manner, demanded that the witness open the cash drawer; that he complied with the defendant's demand and opened the cash drawer, whereupon the two men took $505 in currency from the cash drawer and fled through the front door; that immediately thereafter the witness went through a side door to a sidewalk from which place he saw the two young men running north on Bigley Avenue about 300 feet away; that by telephone he caused the city police to be summoned; that the police arrived within about five minutes; and that later 'that evening' he saw the defendant in a police cruiser and recognized him as one of the two men who had participated in the robbery.

Houston Harold Gunter testified that he is the man who received a loan of $100 from Elk Finance and Loan Company on October 10, 1967. He testified that two 'boys' were in the place of business while the loan was being made to him and that he had a conversation with one of them whom he identified in court as the defendant in this case.

Shortly after the police arrived at the scene of the robbery, they proceeded to search for the two suspects in a wooded area on a hillside which apparently is near the place where they were last seen by Lawman. Samuel Elmore, a member of the Charleston Police Department, testified that he participated in the search for the two suspects about 5:30 p.m., on the day in question, that during the search he came upon two white males lying on the ground in the woods and that they 'had some undergrowth pulled over top of them, trying to conceal themselves.' These two persons were subsequently identified by witnesses as the defendant and his brother. Officer Elmore testified that one of the two men lying on the ground, the one later identified as the defendant, was holding a revolver; that he commanded the two men to 'put down the gun and come on out'; that the defendant pushed the revolver off his chest and onto the ground; that the witness called for Captain Fisher, another city police officer; and that, when Captain Fisher arrived, the two suspects were placed under arrest and handcuffed. Officer Elmore picked up the revolver from the ground and handed it to Captain Fisher. The weapon was later identified in court by both officers as a 22-caliber revolver.

Robert F. Sigmon, a member of the Charleston Police Department, testified that he came upon the scene on the wooded hillside shortly after the defendant and his brother were arrested by the other officers. He identified the defendant and his brother in court as the two persons who had been arrested. Officer Sigmon testified that, in the presence of other officers, he searched the two suspects after they had been taken to police headquarters. On the person of the defendant, he found in the pockets of his trousers $126 in United States currency, a piece of lady's hose and a box containing forty rounds of live 22-caliber ammunition. He also found $100 in ten dollar bills inside the sock on the defendant's left foot and $100 in twenty dollar bills inside the sock on the defendant's right foot, making a total of $326 in currency taken from the person of the defendant.

James Delano Epling, a detective assigned to the Charleston Police Department, identified $326 in currency, 'a piece of stocking,' a pair of 'black colored Vanguard sunglasses,' a 22-caliber pistol and forty rounds of 22-caliber ammunition which, according to his testimony, he had received from...