State v. Flanagan.
| Decision Date | 21 April 1900 |
| Citation | 48 W.Va. 115 |
| Parties | State v. Flanagan. |
| Court | West Virginia Supreme Court |
An indictment may allege both burglary and larceny in the same count, and may join two counts, one for "breaking and entering," and another for "entering without breaking." (p. 117).
In the trial of an indictment, when the prosecuting attorney has introduced all his evidence ard rests the State's case, on a motion by the defendant to exclude the evidence from the jury, as not being sufficient to sustain the indictment against him, if it clearly appear that the evidence is so insufficient, such motion should be sustained, (p. 120).
Error to Circuit Court, Randolph County.
John C. Flanagan was convicted of burglary and larceny, and brings error.
Reversed.
A. B. Parsons, E. A. Cunningham, and J. P. Scott, for plaintiff in error.
Atty.-Gen. Edgar P. Buckee and Luther C. Anderson, for the State.
McWH 0 rter, Pr es ident:
.John C. Flannagan was indicted in the circuit court of Randolph County for unlawfully, feloniously, and burglariously breaking and entering the milk house of E. E. Hedrick, in said county, with intent the goods of him, the said Hedrick, therein being, feloniously and burglariously to take, steal, and carry away, which said milk house was then and there a building other than a dwelling house or out house adjoining thereto or occupied therewith, and did feloniously and burglariously then and there steal, take, and carry away five gallons of jam, of the value of seven dollars and fifty cents, three gallons of apple butter, of the value of three dollars, three gallons of jelly, of the value of six dollars, one ham of meat, of the value of three dollars, two dozen glass jars of blackberries, of the value of six dollars, and one bucket, of the value of fifty cents, in the whole amounting to the value of twenty-six dollars, of the goods and property of E. E. Hedrick, in the said building then being found, against the peace and dignity of the State. A. second count is to the same effect except that the allegation is that said Flanagan "did unlawfully, feloniously, and burglariously enter, without breaking, the said milk house of him, the said E. E. Hedrick, in said county situate, with intent the property of him, the said E. E. Hedrick, therein being, then and there, feloniously and burglariously, to steal, take, and carry away," etc., as in the first count. The defendant demurred to the indictment, and to each count thereof, which demurrer was overruled: and the defendant then moved the court to require the prosecuting attorney to elect as to which of said counts in said indictment he would try the prisoner on, the prisoner contending that each count charged a separate offense, which motion was also overruled, to which rulings of the court defendant excepted; and the defendant pleaded not guilty; and a jury was impaneled, and, upon the evidence adduced, returned a verdict of "guilty as charged in the above indictment." The defendant moved the court to set aside the verdict and grant him a new trial on the ground that the same is contrary to the law and the evidence, and also moved in arrest of judgment, of which motions the court took time to consider; and on the 17th of October, 1899, the court overruled said several motions, and refused to grant a new trial, and pronounced judgment upon said verdict, and sentenced the defendant to the term of three years in the penitentiary. Defendant took six bills of exceptions, numbered one, two, three, four, five. and. six, respectively, which were signed and sealed by the judge, and. made a part of the record. Defendant obtained a writ of error, alleging several errors: That it was error to overrule the demurrer to the indictment and to each count, in that it failed to inform the defendant of the actual law under which the indictment was found, one count charging that In broke and entered the milk house, and the other that he entered without breaking, and that, after the demurrer was overruled, the court erred, in not requiring the prosecuting attorney to elect under which count he would try the defendant; contending that if the indictment was found under section 13, chapter 145, (-ode, the second count was bad, in alleging that the entering was burglarious. One count charged the breaking and entering; the other, the entering without breaking. Both counts charged that it was done feloniously, and the crime charged is of the same character in each count, and it is not misjoinder to include the second count with the first in the indictment. The use of the word "burglariously" will be regarded, as surplusage. The evident intention of the prosecutor was to prosecute the defendant for the larceny of the goods, as the breaking and entering are charged to have been done with intent to commit larceny, and actual larceny charged. State v. McClung, 35 W. Va. 280, (13 S. E. 654); Anthony v..Com, 88 Ya. 847, (14 S. E. 834). "It is common practice, and not contrary to rule anywhere, to join counts, all of which are for felony, in...
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