State v. Goff, 14800

Decision Date26 March 1982
Docket NumberNo. 14800,14800
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Larry Allen GOFF.

Syllabus by the Court

"Where defendant has been once tried upon a criminal charge, and subsequent to such trial a witness who testified in defendant's behalf disappears through no fault of defendant, and, although diligently sought by defendant, cannot be found so as to testify at a later trial of defendant upon the same charge, the testimony of such witness given at the former trial is properly admissible." Syllabus Point 4, State v. Sauls, 97 W.Va. 184, 124 S.E. 670 (1924).

Leo Catsonis, Charleston, for Goff.

Chauncey H. Browning, Atty. Gen. and Michael G. Clagett, Asst. Atty. Gen., Charleston, for the State.

PER CURIAM:

The appellant, Larry Allen Goff, was convicted in the Circuit Court of Kanawha County of delivery of marijuana in violation of W.Va.Code, 60A-4-401(a). The appellant contends here that the trial court's failure to permit the former testimony of a missing material witness to be admitted into evidence upon retrial constitutes reversible error. We agree.

The appellant was indicted in September, 1977, for delivery of marijuana. His first trial, on June 14, 1978, resulted in a mistrial because the jury could not reach a verdict. A retrial was scheduled for August 22, 1978, but was continued until September 19, 1978, on the defendant's motion because a material witness who had testified at the first trial could not be located. The State stipulated at this time that the missing witness was material to appellant's defense. When the matter came to trial on September 19, 1978, the appellant again moved for a continuance because of his continuing inability to locate this witness. The trial court denied the motion and the appellant then moved that testimony given by the missing witness at the first trial be read into the record. The court also refused this motion and proceeded to trial.

The rule in West Virginia is that sworn testimony taken from a former trial or proceeding is admissible if there is (1) an inability to obtain the testimony of the witness, (2) an opportunity to cross-examine the witness in the former proceeding, and (3) a substantial identity of the parties and the issues. State v. R. H., W.Va., 273 S.E.2d 578 (1980). See: State v. Dawson, 129 W.Va. 279, 40 S.E.2d 306 (1946); Hubbard v. Schofield, 97 W.Va. 453, 125 S.E. 221 (1924); Carrico v. West Va. Cent. & P. Ry. Co., 39 W.Va. 86, 19 S.E. 571 (1894).

More specifically, this Court has held, in Syllabus Point 4 of State v. Sauls, 97 W.Va. 184, 124 S.E. 670 (1924), that:

"Where defendant has been once tried upon a criminal charge, and...

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4 cases
  • State v. James Edward S.
    • United States
    • West Virginia Supreme Court
    • December 12, 1990
    ...e.g., State v. Hall, 174 W.Va. 787, 329 S.E.2d 860 (1985); State v. Jacobs, 171 W.Va. 300, 298 S.E.2d 836 (1982); 6 State v. Goff, 169 W.Va. 744, 289 S.E.2d 467 (1982); State v. R.H., 166 W.Va. 280, 273 S.E.2d 578 (1980), overruled on other grounds, State ex rel. Cook v. Helms, 170 W.Va. 20......
  • State v. Weigand
    • United States
    • West Virginia Supreme Court
    • March 26, 1982
  • Ballard v. Hurt
    • United States
    • West Virginia Supreme Court
    • May 30, 2014
    ...to cross-examine the witness in the former proceeding, and (3) a substantial identity of the parties and the issues." State v. Goff, 169 W.Va. 744, 745, 289 S.E.2d 467, 468 (1982). In Goff, as in this case, the trial court had rebuffed a defense motion to introduce sworn testimony from a fi......
  • State v. Jacobs
    • United States
    • West Virginia Supreme Court
    • December 10, 1982
    ...to cross-examine the witness in the former proceeding; and (3) a substantial identity of the parties and the issues. State v. Goff, 169 W.Va. 744, 289 S.E.2d 467 (1982); State v. R.H., 166 W.Va. 280, 273 S.E.2d 578 (1980); State v. Dawson, 129 W.Va. 279, 40 S.E.2d 306 (1946); State v. Sauls......

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