State v. Goodnight

• Decision Date: 24 February 1982
• Docket Number: No. 15210,15210
• Citation: 169 W.Va. 366,287 S.E.2d 504
• Parties: STATE of West Virginia v. James GOODNIGHT.
• Court: West Virginia Supreme Court

Page 504

287 S.E.2d 504

169 W.Va. 366

STATE of West Virginia v. James GOODNIGHT.

No. 15210.

Supreme Court of Appeals of West Virginia.

Feb. 24, 1982.

Syllabus by the Court

1. An indictment for grand larceny that follows the language of W.Va.Code, 62-9-10, is sufficient.

2. W.Va.Code, 8-14-3 gives a municipal officer authority of pursuit and arrest beyond his normal jurisdiction when investigating a crime originating within the municipality or for offenses which are committed in his presence.

3. Grand larceny is punishable by confinement in the penitentiary not less than one nor more than ten years, and attempted grand larceny is punishable by confinement in a county jail not less than six months nor more than one year, and by fine of not more than $500.

4. Sentences imposed by the trial court, if within statutory limits and if not based on some unpermissible factor, are not subject to appellate review.

Rose, Southern & Padden and Duane Southern, Fairmont, for appellant.

Chauncey H. Browning, Atty. Gen. and Marianne Hoover, Asst. Atty. Gen., Charleston, for appellee.

HARSHBARGER, Justice:

A two-count Marion County Grand Jury indictment charged James Goodnight with larceny of a $6,000 Gravely tractor belonging to John Carpenter, and with receiving this tractor as stolen property. The trial court directed a verdict on the receiving stolen property count, ^* and a jury found Goodnight guilty of attempted grand larceny. He was sentenced to one year in the county jail and fined $500.00.

The tractor was taken from church property where Carpenter had been using it to mow the lawn; but Fairmont police found it unattended in woods about three miles from the church, outside the city. They watched the area and arrested Goodnight and companions when they attempted to remove the tractor, but failed because it became mired in mud.

The indictment charged:

DOMINICK ALVARO and JAMES GOODNIGHT on the ____ day of June, 1980, in the said County of Marion, one (1) Gravely tractor of the value of Six Thousand Dollars ($6,000.00), of the goods, chattels and property of John Carpenter, unlawfully and feloniously did steal, take and carry away, against the peace and dignity of the State.

SECOND COUNT: And the Grand Jurors aforesaid, upon their oaths aforesaid, do further present that the said DOMINICK ALVARO and JAMES GOODNIGHT, on the ____ day of June, 1980, and prior to the date of the finding of this indictment, in the said County of Marion, did unlawfully and feloniously receive from a person or persons to the Grand Jurors aforesaid unknown, certain goods and property, ....

All components of grand larceny--i.e., jurisdiction, date, specific property, value, owner, intent, taking and asportation--are set out.

"Larceny, as distinguished from other offenses, is the taking and carrying away from any place, at any time, of the personal property of another, without his consent, by a person not entitled to the possession thereof, feloniously, with intent to deprive the owner of his property permanently, and to convert it to the use of the taker or of some person other than the owner; * * * ". State v. Pietranton, 137 W.Va. 477, 72 S.E.2d 617, 620 (1952).

An indictment for larceny that follows the language of Code, 62-9-10, is sufficient. State v. Lewis, 138 W.Va. 743, 77 S.E.2d 606 (1953). Code, 62-9-10 does not require an indictment to allege the specific place of theft:

An indictment for larceny shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one [ § 62-9-1]):

That A ..., on the ... day of ..., nineteen ..., in the said county of ..., one (here describe the property or articles stolen, giving value of separate items) of the value of ... dollars, of the money, goods, effects and property of B ..., feloniously did steal, take and carry away, against the peace and dignity of the State.

And if the offense be petit larceny, the word "unlawfully" shall be substituted for the word "feloniously" in the form aforesaid, and after the word "aforesaid" the words "and within one year before the finding of this indictment" shall be inserted.

"All allegations, unnecessary to be proved, may be omitted in any indictment or other accusation." Code, 62-2-9. See also Code, 62-2-11.

Defendant had sufficient information to enable "him to prepare his defense and plead his conviction as a bar to later prosecution for the same offense." State v. Furner, W.Va., 245 S.E.2d 618 (1978), Syllabus Point 1. Goodnight knew that he was arrested on the Blair Wolfe property after trying to move the tractor. He was not misled or hindered in his defense.

Judge Fred Fox's conclusion that there was insufficient evidence to convict Goodnight of larceny from the church property did not resolve the larceny count. All events were not part of a "same transaction" per State ex rel. Dowdy v. Robinson, W.Va., 257 S.E.2d 167 (1979), Syllabus Point 1. There was no other double jeopardy problem. See State ex rel. Watson v. Ferguson, W.Va., 274 S.E.2d 440 (1980); Conner v. Griffith, W.Va., 238 S.E.2d 529 (1977), Syllabus Point 1.

When defendant was arrested, police seized planks, a battery, jumper cables and plastic from the truck Goodnight and his compatriots had driven into the woods and toward which they were propelling the tractor when mud stopped its progress. Goodnight objected to admission of these items, claiming that Fairmont City Police were outside their jurisdiction when they arrested him outside the corporate limits.

Evidence seized during an unlawful arrest is inadmissible. State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974), Syllabus Point 6. The larceny from the church grounds was within the city. Goodnight was convicted of attempted larceny beginning and ending outside of Fairmont proper. W.Va.Code, 8-14-3 provides in part:

In order to arrest for the violation of municipal ordinances and as to all matters arising within the corporate limits and coming within the scope of his official duties, the powers of any chief, policeman or sergeant shall extend anywhere within the county or counties in which the municipality is located, and any such...