State v. Fisher, No. 9194.

• Court: Supreme Court of West Virginia
• Writing for the Court: KENNA, President
• Citation: 18 S.E.2d 649
• Parties: STATE . v. FISHER.
• Decision Date: 09 December 1941
• Docket Number: No. 9194.

18 S.E.2d 649

STATE .
v.
FISHER.

No. 9194.

Supreme Court of Appeals of West Virginia.

Dec. 9, 1941.

[18 S.E.2d 649]

Rehearing Denied March 9, 1942.

Syllabus by the Court.

1. When the condition upon which a pardon under Code, 5-1-16, rests, is, by the final judgment of a court of record, found to have been violated, the conviction for the offense which was conditionally pardoned

[18 S.E.2d 650]

may constitute a former conviction under Code, 61-11-18.

2. Under Code, 61-11-18, where there is no admission of the former conviction as charged, sufficient proof to sustain that allegation must be introduced.

Error to Circuit Court, Ritchie County.

Ray Fisher was convicted of larceny, and he brings error.

Reversed and remanded.

S. A. Powell and Dewey S. Wass, both of Harrisville, for plaintiff in error.

Clarence W. Meadows, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen., for defendant in error.

KENNA, President.

In the Circuit Court of Ritchie County Ray Fisher was found guilty as charged under an indictment alleging the commission of a second felony by reason of the larceny of one black steer marked with red paint valued at fifty-five dollars, the property of either Ritchie County Live Stock Sales Company or Okey Barker, the indictment having two counts, and was sentenced to the minimum of six years in the penitentiary.

When arraigned the defendant tendered a special plea admitting his first conviction, and setting up a conditional pardon of the first offense based upon after-discovered evidence of mistaken identity. To this plea the state interposed a demurrer which was sustained; and the defendant, after being arraigned and pleading not guilty, thereafter filed his written motion that the issue raised by his plea of not guilty to the entire charge contained in the indictment be divided so that the then current issue of guilt or innocence could be. tried first, and that if convicted of the charge of grand larceny, his plea of not guilty be treated as a denial of his former 'conviction, and the issue thereon joined be separately submitted.

The motion for separate submissions being overruled, the defendant having pleaded not guilty, proof was taken followed by submission, verdict and sentence, the errors assigned being five in number as follows:

(1) In sustaining the demurrer to the accused's special plea.

(2) In overruling the defendant's pretrial motion.

(3) In refusing to give defendant's instruction number eight which stated only the sentence which would follow a conviction, without stating that the accused was charged with the commission of a second felony. Amended so as to include the latter statement, the instruction was given as instruction number one.

(4) In overruling the defendant's motion to set the verdict aside and grant him a new trial for the reasons assigned in said motion, including comments made by the prosecuting attorney in his closing argument concerning the power of executive clemency and the benefit the accused might derive from its use.

(5) That the sentence, although the minimum that can be added for the commission of a second felony, is a violation of Article III, Section 5 of the West Virginia Constitution, as being not "proportioned to the character and degree of the offense."

The proof shows that at the time alleged, Fisher, a man of forty years, was farming near Lamberton, Ritchie County, having formerly been a butcher, and was the owner of a small Ford pick-up truck in which he hauled cattle for hire to and from pens of the Ritchie County Live Stock Sales Company at Lamberton. That company was engaged in the business of selling cattle, or livestock, at auction, and maintained a number of cattle pens with openings into what was called the "ring" in which the cattle on sale were placed to be offered by an auctioneer.

The case for the prosecution rests upon testimony that on the morning of July 21, 1937, Okey Barker had driven several head of cattle owned by him to one of the company's pens, and that afternoon when his cattle were to be sold and were driven into the ring for that purpose, he observed that the black steer in question, and another, were not among those driven from the pen.

Inquiry disclosed that Fisher had been seen driving his truck loaded with a black steer upon the road between Lamberton and Ellenboro, a town within about a mile and a half of Lamberton, near where Fisher's brother-in-law was living upon a farm that included pasture land. That evening after dark, a member of the Department of Public Safety and Paul Riggs, manager of the live stock company, after having arrested Fisher following admission that he had taken the black steer

[18 S.E.2d 651]

from the company's pen and an offer to surrender it providing that they would not charge him with its theft, went to this farm and after having found and identified...