State v. Etchell

• Decision Date: 16 October 1962
• Docket Number: No. 12152,12152
• Citation: 127 S.E.2d 609,147 W.Va. 338
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Robert John ETCHELL.

Page 609

127 S.E.2d 609

147 W.Va. 338

STATE of West Virginia v. Robert John ETCHELL.

No. 12152.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 11, 1962.

Decided Oct. 16, 1962.

Syllabus by the Court

1. The exclusive possession by an accused person of property recently stolen, either by simple larceny or by theft thereof from a dwelling or other building, is not of itself prima facie evidence that the person in whose possession the goods are found is the thief; but such possession is, nevertheless, a strong circumstance to be considered with other evidence, facts and circumstances properly tending to prove the guilt of such person.

2. Evidence of the exclusive possession by an accused person of recently stolen goods, corroborated by other proper evidence, facts and circumstances tending to prove guilt, may be sufficient to convict the possessor of the theft of such goods, even though the corroborating evidence, facts and circumstances alone would be insufficient to support a conviction. Whether, in such circumstances, the evidence is sufficient to establish the guilt of the accused beyond reasonable doubt is ordinarily a question of fact for the jury.

3. 'If a new trial depends upon the weight of testimony or inferences from it, the jury are exclusively and almost uncontrollably the judges.' State v. Winans, Point 1 Syllabus, 100 W.Va. 418, 130 S.E. 607.

4. 'In a criminal case, a verdict of guilt 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 guilt 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.' Point 1 Syllabus, State v. Bowles, 117 W.Va. 217, 185 S.E. 205.

5. As a general rule, this Court will not consider an objection to an instruction granted on behalf of the state in a criminal case, whether involving a charge of a misdemeanor or of a felony, in the absence of a timely objection thereto in the trial court.

Harrison Conaway, Fairmont, for plaintiff in error.

C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., Charleston, for defendant in error.

CALHOUN, President.

In June, 1961, in the Criminal Court of Marion County, the defendant was tried upon an indictment charging that in May of that year he entered a service station operated by Robert M. Talbott, Jr., in Fairmont and stole therefrom various items of personal property. The trial resulted in a verdict of guilty as charged in the indictment, and the defendant was sentenced to the state penitentiary for an indeterminate period of from one to ten years pursuant to the provisions of Code, 1931, 61-3-12.

By an order entered September 22, 1961, the Circuit Court of Marion County refused to grant a writ of error and supersedeas to the final judgment of sentence. On a writ of error and supersedeas granted by this Court, the sole issues presented for decision involve the question whether the evidence is sufficient to support the jury verdict, and the action of the trial court in granting a certain instruction tendered by the state.

Upon arrival at the service station on the early morning of May 6, 1961, Lawrence Milford Compton, an employee, discovered that somebody had broken and entered the station during the preceding night and had stolen therefrom two swivel wrenches, two 2-gallon cans of oil, two screwdrivers, four pairs of sunglasses, approximately three dollars in pennies and nickels, and ten motor vehicle tires. The indictment alleges that the aggregate value of the stolen property was $205.41.

Two city police officers were summoned promptly by Compton. Upon arrival at the scene about 6:45 a. m., the officers observed the evidence of forcible entry into the building, made a preliminary investigation and obtained from Compton a list and description of the several items of stolen property.

On the early morning of the same day, R. E. Cool, a state policeman stationed at Sutton in Braxton County, received information that a man, under suspicious circumstances, had undertaken to sell motor vehicle tires to an employee of a nearby service station. The state policeman located the man in question and his automobile about 6:30 o'clock that morning at a service station at Gassaway in Braxton County, the same county in which Sutton is located. The man was the defendant, Robert John Etchell.

Eight of the tires taken from the service station were new tires, bearing the original wrappings. On the wrapping of each of the eight tires was a name and address as follows: 'Robert Talbott, Jr., Morgantown Avenue and Speedway, Fairmont, West Virginia.' The other two were recapped tires and on each of them was stenciled Talbott's name and address. The tires were 'in the back seat' of the defendant's automobile in plain view. On the floor of the automobile in plain view of the state policeman were two 2-gallon cans of oil of the same description as the cans of oil which had been stolen from the service station at Fairmont the preceding night. The state policeman testified that the defendant stated to him in relation to the tires that 'he had bought them off a fellow at the Blue Room in Morgantown about 2:30'; and that later he stated that 'he had purchased them from a fellow at the Blue Room near Morgantown at 2:30 or 3 o'clock in the morning.'

Under the circumstances outlined above, the state policeman detained the defendant in jail at Sutton and meantime got in touch by telephone with police officers at Fairmont. Two Fairmont city police officers thereafter went to Braxton County, armed with a warrant for the defendant's arrest. In addition to the ten motor vehicle tires, the officers found in the defendant's automobile two 2-gallon cans of oil, four pairs of sunglasses, two wrenches and two screwdrivers.

The ten tires were definitely identified by Talbott, the owner, and by Compton, his employee. The four pairs of sunglasses, when recovered, were mounted on a display card bearing the wording, 'Merit Miracle Mirror Sun Glasses.' Talbott and Compton testified that similar sunglasses, on a display card of like description, were stolen from the service station on the night in question. Also found by the officers in the defendant's automobile at Sutton were two used screwdrivers and two used wrenches. Compton and Talbott, while not able to make an unqualified identification of these four tools, testified that in appearance they were in all respects like those stolen from the service station.

The defendant at the time of his arrest was a resident of Charleston, West Virginia, though until about six months prior thereto he had resided in Cleveland, Ohio. He testified that on May 5, 1961, he left Charleston about twelve o'clock noon for the purpose of transporting Mrs. Nadine Ash, also of Charleston, to Morgantown, West Virginia. Apparently her purpose in making the trip was to see the proprietor of the Blue Room, a beer tavern located in Westover, which is a municipality situated across the Monongahela River from Morgantown.

On May 5, 1961, the defendant had been married to Elizabeth Fay Etchell for perhaps no more than a week or so. Prior to that date, she had been employed by Mrs. Nadine Ash as a baby-sitter. The defendant and his wife both testified that on that day Mrs. Ash paid her $45 for her prior services as a baby-sitter and that Mrs. Etchell in turn gave the $45 to the defendant before he commenced his trip to Morgantown. The defendant testified that on the same day Mrs. Ash gave him $10 with which he bought some gas and oil, and that he retained the change from such purchase. Mrs. Ash testified that she paid the defendant ten or fifteen dollars prior to the time they started to Morgantown, though she was not certain the exact amount. She testified further that on the same day she paid Mrs. Etchell the sum of $45, but she did not know what Mrs. Etchell did with the money thus paid to her. When the defendant was taken in custody in Braxton County by the arresting officers, they found on his person only one cent. He was not searched when first taken in custody and lodged in jail by the state policeman. While it does not appear how much money the defendant spent from the time he left Charleston until the time he was searched, it does appear from defendant's testimony that he was in or about the Blue Room tavern from about 8:30 until about midnight; that he was drinking during the course of the evening; and that en route to Morgantown he and Mrs. Ash stopped for food and other purchases of a minor nature.

The defendant testified that he left the Blue Room about midnight, started 'straight home' and that he did not stop at any time or place until he stopped at the service station near Sutton to sell one or more tires. R. E. Cool, the state policeman stationed at Sutton, testified that the distance from Gassaway, where defendant was taken in custody, to Fairmont is about 120 or 125 miles, and that when he drove from Sutton to Fairmont to attend the trial, the trip consumed about two and one-half hours of driving time.

The defendant testified that he and Mrs. Ash passed through Grafton on the trip to Morgantown and that he returned by the same route, but, when asked about other cities, he stated, 'It has been about five weeks ago, naturally not knowing this part of the country, I couldn't swear to what cities I went through.' He specifically denied having been in Fairmont at any time. Mrs. Ash also was uncertain about cities they passed through or the route traveled in going to Morgantown, stating, 'had I been driving, I probably would know.' She was unable to state whether they went by way of Grafton.

The defendant was introduced to the...