State v. Fischer, No. 13383

CourtSupreme Court of West Virginia
Writing for the CourtCAPLAN; NEELY
Citation158 W.Va. 72,211 S.E.2d 666
PartiesSTATE of West Virginia v. Gary Eugene FISCHER.
Docket NumberNo. 13383
Decision Date24 September 1974

Page 666

211 S.E.2d 666
158 W.Va. 72
STATE of West Virginia
v.
Gary Eugene FISCHER.
No. 13383.
Supreme Court of Appeals of West Virginia.
Sept. 24, 1974.

Syllabus by the Court

1. 'Upon motion to direct a verdict for the defendant, the evidence is to be viewed in light most favorable to prosecution. It is not necessary in appraising its sufficiency that the trial court or reviewing court be convinced beyond a reasonable doubt of the guilt of the defendant; the question is whether there is substantial evidence

Page 667

upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt.' State v. West, 153 W.Va. 325 (168 S.E.2d 716) (1969).

2. 'The jury is the trier of the facts and in performing that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses.' Point 2, Syllabus, State v. Bailey, 151 W.Va. 796 (155 S.E.2d 850) (1967).

3. The conduct of a trial is within the sound discretion of the trial court and such court, to a large extent, has full control of the order in which evidence is to be introduced.

4. It is within the sound discretion of the court in the furtherance of the interests of justice to permit either party, after it has rested, to reopen the case for the purpose of offering further evidence and unless that discretion is abused the action of the court will not be disturbed.

Rice, Hannis & Rice, Richard L. Douglas, Martinsburg, for plaintiff in error.

[158 W.Va. 73] Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Charleston, for defendant in error.

CAPLAN, Chief Justice:

This case is before the Court upon a writ of error to a final judgment of the Circuit Court of Morgan County entered on September 18, 1972, wherein, upon a finding of guilty by a jury, the defendant, Gary Eugene Fischer, was committed to the custody of the West Virginia Commissioner of Public Institutions to be assigned to a forestry camp for a term not to exceed two years. The aforesaid commitment resulted from an indictment returned by the grand jury for the Circuit Court of Morgan County in which the defendant was charged with the crime of burglary.

In the indictment it was charged that Gary Eugene Fischer, the defendant, on a day in August, 1972, in the nighttime, feloniously and burglariously entered the dwelling house of Frederick Dhyse with the intent to 'take, steal and carry away' certain goods and chattels.

It appears from the record that during the investigation of the burglary, William Clark, Sheriff of Morgan County, interrogated Terry Stinebaugh who readily admitted his participation in the crime. Stinebaugh willingly signed a statement wherein he related the details of the burglary and therein named the defendant as one of the participants in the crime.

Testifying at the trial, Stinebaugh related that on the night in question, after having consumed a considerable amount of an alcoholic beverage, he went to the community of Capon where he met one Danny Farris and 'this guy named Pug'. His testimony in relation to whom he met in addition to Danny Farris was 'And this guy named Pug; that's what Danny called him, Pug. I couldn't swear who it was; it might have been Gary. I couldn't swear who it was because I was drunk.' He further testified that he and Danny and Pug rode around in a car for two or three hours when they decided[158 W.Va. 74] they would go to the Dhyse house to get some 'stuff' which they intended to sell. Upon being asked who went into the house with him he replied, 'Me and this other guy named Pug'. Danny Farris stayed in the car.

He acknowledged at the trial that the defendant who was in jail with him for the same offense was called Pug but persisted in his testimony that he did not know whether Gary Eugene Fischer was the one who participated in the entry of the Dhyse house with him. By reason of this witness' failure or refusal to identify the defendant, the prosecuting attorney declared to the court that he desired to treat him as a hostile witness. At this point the jury was returned to the jury room. Thereupon the prosecuting attorney produced before the court a written statement signed by witness Terry Stinebaugh. He read the following part of the statement to the court: 'Sometime during August, 1972, myself along

Page 668

with Gary Eugene Fischer and Danny Lee Farris, we all three was riding around in Danny Farris car. We all decided to go get some stuff and sell it. Danny Farris was drinking some. We went to Frederick Dhyse house off Rt. 9, Long Hollow Road. Gary Fischer and I went into the house while Danny Farris waited in his car.' The court stated that it would permit the state's attorney to ask the witness leading questions but he would not permit him to impeach his witness with the statement signed by said witness.

Upon cross examination Terry Stinebaugh testified that he had known Gary Fischer, the defendant, for approximately four months and had seen him 'About three or four times a week, five, something like that.' Upon being asked if Gary Fischer was the person with him when he burglarized the Dhyse house he again stated he could not tell, that he was too drunk to notice and that he recalled Danny calling him Pug. Other witnesses were produced by the state who testified that Gary Eugene Fischer was known by the nickname Pug throughout the area.

[158 W.Va. 75] No other witnesses for the state, except for the testimony in relation to the nickname Pug, in any way connected the defendant to this crime. Thereupon the state rested and the defendant's counsel moved the court to direct a verdict of not guilty on the ground that the state had failed to prove a prima facie case against the defendant which would support a verdict of guilty. Thereafter, but prior to the presentation of any evidence by the defense, the state moved to reopen its case for the purpose of introducing evidence of the written statement of Terry Stinebaugh to show a contradiction of his testimony on the stand. The motion was granted over the objection of defendant's counsel. After considerable colloquy between the court and counsel, the prosecuting attorney read the above quoted portion of the statement to witness Stinebaugh and ask him if he had made that statement. The witness said that it was his statement and that he had signed it. He denied, however, that he named Gary Eugene Fischer. His testimony in regard to this matter follows: 'I told Clark and Batt (Deputy Sheriff) was there, too. I said, I don't know the guy's name but Pug--he said 'Gary Eugene Fischer?'--and I said, 'it might be'; I don't know.' Over the objection of the defendant this portion of the statement was admitted into evidence. Both Sheriff Clark and Deputy Sheriff Batt were recalled to the stand and testified that Stinebaugh had, in fact, named defendant Gary Eugene Fischer when he made his statement. Again the state rested and once more the defendant moved for a directed verdict, which motion was denied.

Appearing as a witness for the defense, Danny Lee Farris testified that the defendant was not with him and Stinebaugh on the occasion of the burglary; that only those two were together, and that he remained in his car and was not aware of the breaking into the house by Stinebaugh. Upon cross examination by the state's attorney, Farris said that he was too drunk to know who was in the group. The defendant took the stand and testified that he did not 'think' he had been [158 W.Va. 76] with Terry Stinebaugh any time during the period of the 13th through the 20th of August. He admitted that he knew Danny Farris and Terry Stinebaugh and had seen the latter 'maybe three or four times a week'. He also noted that Stinebaugh knew him by name and acknowledged that he was known by the nickname of Pug. The defense rested and thereupon renewed its motion for a directed verdict of not guilty. The court denied the motion and after instructions were read to the jury and oral arguments made by counsel the jury retired to consider its verdict. It found the defendant guilty as charged in the indictment. Upon the refusal of the court to set aside the verdict and grant a new trial, the defendant prosecuted this appeal.

The appellant relies on the following assignments of error: (1) The court erred in refusing his motion to direct a verdict of

Page 669

not guilty at the conclusion of the state's evidence; (2) the court erred in 'allowing the State to reopen the case and to examine the witness Stinebaugh as to a written statement which implicated the Defendant after the crime had been accomplished and after the witness had denied Petitioner's involvement when examined by the State.'

In relation to the first assignment of error we are of the opinion that there was sufficient evidence to warrant submission of the case to the jury. In State v. West, 153 W.Va. 325, 168 S.E.2d 716 (1969) the Court cogently noted: 'Upon motion to direct a verdict for the defendant, the evidence is to be viewed in light most favorable to prosecution. It is not necessary in appraising its sufficiency that the trial court or reviewing court be convinced beyond a reasonable doubt of the guilt of the defendant; the question is whether there is substantial evidence upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt.'

A review of the evidence in the instant case is pertinent to determine whether there is substantial evidence upon which the jury might justifiably find the defendant [158 W.Va. 77] guilty beyond a reasonable doubt. As a witness for the state, Terry Stinebaugh testified that he, along with Danny Farris and 'this guy named Pug', drove out to the Dhyse house where he and Pug entered the house for the purpose of consummating their plan to burglarize it and get some 'stuff' to sell. He acknowledged at the trial that the defendant who was in jail with him, charged with the same offense, was in fact Gary Eugene Fischer and...

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45 practice notes
  • State v. Davis, No. 16433
    • United States
    • Supreme Court of West Virginia
    • March 25, 1986
    ...find the defendant guilty beyond a reasonable doubt.' State v. West, 153 W.Va. 325, 168 S.E.2d 716 (1969)." Syl. pt. 1, State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 11. "Instructions in a criminal case that are confusing, misleading, or incorrectly state the law should not be given." Syl.......
  • State v. Davis, No. 25812.
    • United States
    • Supreme Court of West Virginia
    • June 28, 1999
    ...poison. 10. A motion for judgment of acquittal is reviewed under the same standard as articulated in Syllabus Point 1 of State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 (1974): Upon motion to direct a verdict for the defendant, the evidence is to be viewed in light most favorable to prosecut......
  • State v. Oldaker, Nos. 15727
    • United States
    • Supreme Court of West Virginia
    • June 22, 1983
    ...and unless that discretion is abused the action of the trial court will not be disturbed.' Syllabus point 4, State v. Fischer, W.Va., 211 S.E.2d 666 (1974)." Syllabus Point 4, State v. Daggett, 167 W.Va. 411, 280 S.E.2d 545 6. "The power of a court in a criminal case to discharge a jury wit......
  • State v. Cook, No. 16183
    • United States
    • Supreme Court of West Virginia
    • July 15, 1985
    ...evidence upon which a jury might justifiably find the defendant guilty beyond a Page 152 reasonable doubt." Syl. pt. 1, State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 George P. Stanton, III, Asst. Atty. Gen., Charleston, for appellee. T.D. Kauffelt and James Kauffelt, Benjamin N. Snyder, Ch......
  • Request a trial to view additional results
45 cases
  • State v. Davis, No. 16433
    • United States
    • Supreme Court of West Virginia
    • March 25, 1986
    ...find the defendant guilty beyond a reasonable doubt.' State v. West, 153 W.Va. 325, 168 S.E.2d 716 (1969)." Syl. pt. 1, State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 11. "Instructions in a criminal case that are confusing, misleading, or incorrectly state the law should not be given." Syl.......
  • State v. Davis, No. 25812.
    • United States
    • Supreme Court of West Virginia
    • June 28, 1999
    ...poison. 10. A motion for judgment of acquittal is reviewed under the same standard as articulated in Syllabus Point 1 of State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 (1974): Upon motion to direct a verdict for the defendant, the evidence is to be viewed in light most favorable to prosecut......
  • State v. Oldaker, Nos. 15727
    • United States
    • Supreme Court of West Virginia
    • June 22, 1983
    ...and unless that discretion is abused the action of the trial court will not be disturbed.' Syllabus point 4, State v. Fischer, W.Va., 211 S.E.2d 666 (1974)." Syllabus Point 4, State v. Daggett, 167 W.Va. 411, 280 S.E.2d 545 6. "The power of a court in a criminal case to discharge a jury wit......
  • State v. Cook, No. 16183
    • United States
    • Supreme Court of West Virginia
    • July 15, 1985
    ...evidence upon which a jury might justifiably find the defendant guilty beyond a Page 152 reasonable doubt." Syl. pt. 1, State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 George P. Stanton, III, Asst. Atty. Gen., Charleston, for appellee. T.D. Kauffelt and James Kauffelt, Benjamin N. Snyder, Ch......
  • Request a trial to view additional results

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