State v. Denied ), (No. 6906)

• Citation: 110 W.Va. 444
• Decision Date: 12 May 1931
• Docket Number: (No. 6906)
• Court: Supreme Court of West Virginia
• Parties: State v. 0. Emerson Camp(Rehearing denied)

110 W.Va. 444

State

v. 0. Emerson Camp(Rehearing denied)

(No. 6906)

Supreme Court of Appeals of West Virginia.

Submitted April 28, 1931.

Decided May 12, 1931.

June 9, 1931.

1. Criminal Law

Upon a charge of larceny or embezzlement, other acts of similar character by the accused, so intimately connected with the one under investigation as to indicate a general criminal design or system, are admissible.

2. Jury

The fact that a venireman has expressed an opinion as to the guilt or innocence of the accused is not controlling in determining the qualification of such venireman to sit as a juror in the trial. The deciding factor is whether without bias or prejudice he can render a verdict solely on the evidence, under the court's instructions, disregarding any prior opinion which he may have entertained.

3. Criminal Law

The fact that the principal witness in the case, as shown by his own evidence, is in reality an accomplice with the defendant in the crime charged does not in itself destroy his testimony. And, if the conviction is necessarily dependent upon the testimony of an accomplice, the appellate court will not ordinarily disturb the verdict solely on that ground where the circuit judge has declined to do so.

4. Same

The legal presumption is that all men are sane; and the burden of proof is upon him who alleges unsoundness of mind in any individual.

5. Jury

Legal competency to act is the possession of mental capacity sufficient to transact one's business with intelligence, and an intelligent understanding of what he is doing.

6. Criminal Law Jury

Where the verdict of a jury is sought to be set aside on the ground of the insanity of a juror at the trial, the mental condition of such juror becomes a question of fact to be determined by the court. The true test in such case is, Was he insane at the time of his services as such juror? Where there is substantial evidence supporting the finding of sanity by the trial court, ordinarily that finding will not be disturbed.

Error to Circuit Court, Kanawha County.

0. Emerson Camp was convicted, in an intermediate court, of larceny, and to review a judgment of the circuit court refusing him a writ of error and supersedeas, the defendant brings error.

Judgment affirmed.

A. M. Belcher, for plaintiff in error.

Howard B. Lee, Attorney General, W. Elliott Nefflen, Assistant Attorney General, and J. Blackburn Watts, Prosecuting Attorney, for the State.

Woods, Judge:

0. Emerson Camp complains of the action of the circuit court of Kanawha county in refusing him a writ of error and supersedeas to a judgment of the intermediate court of said county, sentencing him to confinement in the penitentiary for a term of three years.

The first four counts of the indictment charged the defendant with the larceny of $100.00, $70.00, $500.00 and $92.50, respectively, of the goods and chattels of the board of education of Maiden district, etc., and counts 5, 6, 7 and 8 each charged embezzlement of one of said sums, in the order named. At the time of his indictment, Camp was county superintendent of schools for Kanawha county and by virtue of said office, county financial secretary. While evidence was introduced concerning each of the several items with which defendant was charged, the state, at the end of the trial, by an instruction, elected to rely upon the offense charged in the third count, i. e. the larceny of the $500.00 item. In support of this phase of the case, C. L. Skyles, testified that, while secretary of the board of education of Maiden district, he informed Camp that $1,100.00 was needed to pay off certain men working for Maiden district; that Camp directed him to make out a check for $1,600.00, as he (Camp) needed some money; that he drew a check, dated August 25, 1928, in the sum of $1,600.00, payable to P. P. Hanson, a carpenter, who was building the Valley Grove schoolhouse for the board; that the same was signed by himself, as secretary, I. I. Beasley, as president, and by Camp as county financial secretary; that the check was turned over to Joe Martin, who, after having it cashed, returned to Camp's office and gave the money to Skyles, who then and there gave Camp the sum of $500.00; that afterwards, he and Martin went to the Valley Grove schoolhouse and paid the sum of $492.00 to P. P. Hanson, and paid the remainder of the money to the other men working on the schoolhouse. This witness also testified that Camp had him and Keeney sign a financial statement of the board of Maiden district which statement would apparently have absolved Camp. Keeney stated that he signed but did not read the same. Hanson testified that he authorized Skyles to endorse his name on a check for $492.00, but not for $1,600.00. Beasley left several blank checks with his signature as president at Camp's office. J. E. Martin states that he was work- ing for Camp, but didn't know what Camp wanted to do with the money.

In addition to the particular items set out in the indictment, the State questioned Nellie R. Kern, Camp's secretary, regarding certain checks from various boards in the county, made payable to her, presumbly for grading examination papers. These several checks were written by the several boards at Camp's request. After being cashed by Miss Kern, the money was in each instance turned over to Camp. This testimony was limited by the court to show method, system and intent, and guilty knowledge.

Evidence was introduced on behalf of the defendant denying the several charges of misappropriation. And, when questioned on direct examination regarding the correctness of the testimony of Walter II. Keeney, a witness for the State, to the effect that he had been told (in September, 1929) by Camp that the latter had to put up $2,500.00, and that he thought that Mr. Beasley, Mr. Martin and Mr. Skyles should put up the other $500.00, the defendant admitted that he raised or caused to be placed in the hands of a party $1,500.00 toward the refund to the sheriff, and went into detail as to his reasons for such action on his part.

Complaint is made of the trial court's action in admitting evidence of other offenses of like character. Generally, it is error to admit evidence independent of the crime charged of other offenses, or the prior conviction for other offenses. But there are many exceptions to this rule. In our recent case of State v. Rush, 108 W. Va 254, the rule is laid down that upon a charge of embezzlement, other acts of similar character by the accused so intimately connected with the one under investigation as to indicate a general criminal design or system, are admissible. A like rule would apply upon a charge of larceny. 16 C. J., p. 603, sec. 1170. On looking to the evidence of such other offenses admitted in this trial, we find that the trial court limited them to the system and intent of the defendant, and overruled the objection to this testimony, solely for that purpose.

Since the defendant admitted making a $1,500.00 refund to the authorities for part of the sum alleged to have been filched from the people in Maiden district, he does not complain of such admission, but confines his objection to its evidential value against him. The general rule is laid down in the text books that such evidence is admissible where the accused is charged with larceny, as here. 36 C. J. 893. When persons accused of larceny voluntarily pay the value of stolen goods and the costs of prosecution, their conduct is evidence of their guilt. State v. Furr, 121 N. C. 606. If such act would not weigh against the prisoner, why would attorney Salisbury in making the refund ask that the donor's name be not revealed"? In cases involving larceny such evidence is valuable as showing the conduct of the accused immediately after the larceny which has a legal tendency to connect him with the crime.

The panel of twelve selected to sit on the case were sworn before the noon intermission on Monday. On assembling in the afternoon, and before any evidence had been offered, attorney Salisbury for the defendant moved the court to discharge the panel on account of an alleged disqualification of jurors John Snyder and A. F. Vorholt, stating that he had been informed, and would prove, if given time to produce the witness, that said jurors had expressed an opinion in regard to defendant's guilt in a conversation with one John D. Kennedy of Clendenin. Such matters of course may be raised on motion for new trial, and, inasmuch as a question going to alleged improper conduct of a juror should be called to the attention of the trial judge at the earliest moment, to the end that the expense and labor of the trial may be saved if the matter complained of is such as would render the trial abortive, it follows that it was proper to call this matter to the attention of the court before the taking of testimony. But a trial court's action on such matters should not be interfered with unless its discretion has been abused. In the instant case the trial court acted well within its sound discretion in overruling the motion to discharge the panel. Subsequent events justify that action. Although John D. Kennedy was named as the person knowing of the disqualification of the jurors, he was not called as a witness on the motion for a new trial nor was his affidavit taken. No evidence of any nature was submitted on motion for new trial to substantiate the allegations against Vorholt. After verdict, however, and in support of the motion for a new trial, attacks were made on jurors, John Snyder, Allen Temple, Frank Myers and George Fridley. The remarks attributed to them indicated their individual beliefs prior to the trial of the guilt of the defendant. The general rule is that after a verdict, all presumptions of law are in favor of the jurors' competency, and the burden of proof is upon the one who attacks it. 8 Ency. Ev. 986. The fact that a venireman by reason of something he lias read or heard may have entertained an opinion as to the guilt or...