State v. Eye, No. 17126

CourtSupreme Court of West Virginia
Writing for the CourtBROTHERTON
Citation355 S.E.2d 921,177 W.Va. 671
PartiesSTATE of West Virginia v. Wesley Allen EYE.
Docket NumberNo. 17126
Decision Date01 April 1987

Page 921

355 S.E.2d 921
177 W.Va. 671
STATE of West Virginia
v.
Wesley Allen EYE.
No. 17126.
Supreme Court of Appeals of
West Virginia.
April 1, 1987.

Page 922

[177 W.Va. 672] Syllabus by the Court

"A trial court may in its discretion order two or more indictments, or informations, or both, to be tried together if the offenses could have been joined in a single indictment or information, that is, the offenses are of the same or similar character or are based on the same act or transaction, or on two or more acts or transactions connected together or constituting a common scheme or plan." Syl. pt. 5, State v. Mitter, 168 W.Va. 531, 285 S.E.2d 376 (1981).

Steven M. Askin, Askin, Pill, Scales & Burke, Martinsburg, for appellant.

Charles Brown, Atty. Gen., David Johnson, Asst. Atty. Gen., Charleston, for appellee.

BROTHERTON, Justice:

This is an appeal from a jury verdict of the Circuit Court of Pendleton County finding the appellant, Wesley Eye, guilty of burglary, grand larceny, arson, arson with intent to defraud an insurer, and four counts of conspiracy to commit the above offenses. Upon review, we reverse due to prejudicial joinder of offenses and remand to the trial court.

Wesley Eye allegedly was a member of a small gang of local thieves. The investigation into his case began when the state police obtained a statement from Joseph Hansen, a part-time member of the gang, that he had burned his own trailer for insurance purposes and participated in a burglary of a residence in Pendleton County. In both cases he implicated Wesley Eye as an accomplice. Hansen did not testify. However, another accomplice, Steven Eckard did testify. Eckard's testimony implicated Eye in the burning of the trailer and in two burglaries.

The most interesting of the three incidents was the burglary and larceny of the Calvin Borror residence. This could be called the case of the musty money. The Borrors ran a local store. Evidently they were suspicious of banks and kept most of their money in a safe at their house. Mr. Eye and his friends allegedly heard of this practice and decided to help themselves to some of the wealth. They broke into the home at a time that they knew that both Mr. and Mrs. Borror would be running the store and opened the safe using a hammer and chisel. The money had been left in the safe so long, it had molded. It was brown and stank with a distinctive musty odor. The thieves took the money and left.

When the crime was discovered, the police put out a notice for people to look for odiferous cash and the appellant's wife was one of those who turned up with the moldy money.

Based on the confession of Joe Hansen, the police obtained a search warrant for Mr. Eye's residence. The police did not find any of the stale sheckels, but a search of an outbuilding uncovered a chisel. The chisel was compared in the laboratory with a microscopic comparison microscope and found to be the same chisel that was used to pry open the safe door.

I.

The grand jury returned a fifteen-count indictment against Wesley Eye. The counts concerned such diverse matters as burglary, arson, the obstruction of justice, and various related conspiracy counts.

Rule 14(a) of...

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10 practice notes
  • State v. Hottle, No. 23094
    • United States
    • Supreme Court of West Virginia
    • 17 juillet 1996
    ...P. 14(a) is a matter within the sound discretion of the trial court."); see also Syl. pt. 5, State v. Mitter, supra; Syl., State v. Eye, 177 W.Va. 671, 355 S.E.2d 921 (1987)(trial court has discretion to join indictments based on "a common scheme or In the case sub judice, the State maintai......
  • State v. James Edward S., No. 19577
    • United States
    • Supreme Court of West Virginia
    • 12 décembre 1990
    ...State v. Mullens, 179 W.Va. 567, 371 S.E.2d 64 (1988) (accomplice took Fifth Amendment and prosecutor read his confession); State v. Eye, 177 W.Va. 671 , 355 S.E.2d 921 (1987) (court refused to allow defendant to cross-examine a witness regarding bias). Cf. Naum v. Halbritter, 172 W.Va. 610......
  • State v. Hanson, No. 17691
    • United States
    • Supreme Court of West Virginia
    • 16 juin 1989
    ...364] a joint trial of the arson and burglary charges was prejudicial error requiring reversal. Page 558 State v. Eye, 177 W.Va. 677, 355 S.E.2d 921 (1987). On remand, the circuit court should carefully scrutinize the charges against the defendant in this light. See State v. Hatfield, 181 W.......
  • State v. Middleton, No. 33048.
    • United States
    • Supreme Court of West Virginia
    • 29 novembre 2006
    ...460 S.E.2d 36, 42 (1995), overruled on other grounds by State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006). See also State v. Eye, 177 W.Va. 671, 673, 355 S.E.2d 921, 923 (1987) ("The confrontation clause of the Sixth Amendment to the United States Constitution, coupled with the Fourte......
  • Request a trial to view additional results
10 cases
  • State v. Hottle, No. 23094
    • United States
    • Supreme Court of West Virginia
    • 17 juillet 1996
    ...P. 14(a) is a matter within the sound discretion of the trial court."); see also Syl. pt. 5, State v. Mitter, supra; Syl., State v. Eye, 177 W.Va. 671, 355 S.E.2d 921 (1987)(trial court has discretion to join indictments based on "a common scheme or In the case sub judice, the State maintai......
  • State v. James Edward S., No. 19577
    • United States
    • Supreme Court of West Virginia
    • 12 décembre 1990
    ...State v. Mullens, 179 W.Va. 567, 371 S.E.2d 64 (1988) (accomplice took Fifth Amendment and prosecutor read his confession); State v. Eye, 177 W.Va. 671 , 355 S.E.2d 921 (1987) (court refused to allow defendant to cross-examine a witness regarding bias). Cf. Naum v. Halbritter, 172 W.Va. 610......
  • State v. Hanson, No. 17691
    • United States
    • Supreme Court of West Virginia
    • 16 juin 1989
    ...364] a joint trial of the arson and burglary charges was prejudicial error requiring reversal. Page 558 State v. Eye, 177 W.Va. 677, 355 S.E.2d 921 (1987). On remand, the circuit court should carefully scrutinize the charges against the defendant in this light. See State v. Hatfield, 181 W.......
  • State v. Middleton, No. 33048.
    • United States
    • Supreme Court of West Virginia
    • 29 novembre 2006
    ...460 S.E.2d 36, 42 (1995), overruled on other grounds by State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006). See also State v. Eye, 177 W.Va. 671, 673, 355 S.E.2d 921, 923 (1987) ("The confrontation clause of the Sixth Amendment to the United States Constitution, coupled with the Fourte......
  • Request a trial to view additional results

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