State v. Gregory

• Decision Date: 11 November 1958
• Docket Number: No. 10970,10970
• Citation: 143 W.Va. 878,105 S.E.2d 532
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Finley GREGORY.

Page 532

105 S.E.2d 532

143 W.Va. 878

STATE of West Virginia v. Finley GREGORY.

No. 10970.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 16, 1958.

Decided Nov. 11, 1958.

Syllabus by the Court

1. Where an accused under indictment for an offense is without the jurisdiction, and returns to the jurisdiction to answer to the indictment on a day subsequent to the beginning of a regular term of the court having jurisdiction to try him for the offense, the term during which he returned is not to be counted in determining whether accused is entitled to discharge from prosecution by virtue of Code, 62-3-21.

2. Where, under an indictment for the breaking and entering of a certain storeroom or building, and the subsequent larceny therefrom of goods of the value of thirty-nine dollars ($39.00), an instruction is given defining the crime of grand larceny as the taking of goods of the value of twenty dollars ($20.00) or more such instruction is not erroneous even though prior to the time of trial, but subsequent to the date of the offense, the distinction between the crimes of grand larceny and petit larceny had been changed from the taking of goods valued at twenty dollars ($20.00) or more to the taking of goods valued at fifty dollars ($50.00) or more.

3. Instructions which tend to confuse or mislead the jury are properly refused.

4. The admission of evidence which, though improper, does not prejudice the accused does not constitute reversible error.

5. Where the verdict of a jury is improper in form, but the true intent and meaning can be ascertained with certainty, it is the duty of the trial court to amend the verdict, in the presence of the jury and before its discharge, so as to effectuate the true intent and meaning of the jury.

Richard E. Davis, John D. Downes, Morgantown, for plaintiff in error.

W. W. Barron, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., for defendant in error.

BROWNING, Judge.

The defendant, Finley Gregory, was jointly indicted with one Howard Wilson by the grand jury attending the October, 1954, term of the Circuit Court of Monongalia County. The indictment, No. 6235, was composed of two counts, the first charging the breaking and entering, with intent to commit larceny of a certain storeroom of building in Monongalia County, and the subsequent larceny of $39 therefrom, and the second charging an entering without breaking of the same building with intent to commit larceny, and the subsequent larceny of $39 therefrom. Howard Wilson was convicted, upon his plea of guilty to the indictment, at the October, 1954, term of court and sentenced to imprisonment in the State Penitentiary. The defendant, being then out of the jursidiction, did not appear to answer to the indictment and a capias was issued for his arrest.

Defendant was arrested by local authorities in Tampa, Florida, on January 8, 1957, and a bond was executed by him conditioned upon his appearance before the Circuit Court of Monongalia County on January 25, 1957, to answer to the indictment, January 25 being a regular day of the January term of that court, which term began on January 10, 1957. Defendant appeared on the day specified, with counsel, moved to quash the indictment and filed a written demurrer thereto. He then moved the court to require the State to file a bill of particulars. The court took the several motions and demurrer under advisement and defendant entered a plea of not guilty. Jury trials were held by the Circuit Court of Monongalia County during the month of February, and the January term was adjourned on March 15, 1957, without further action in regard to defendant. The regular April and July terms of the Circuit Court of Monongalia County were held and adjourned without a trial of defendant upon the indictment and it is agreed by counsel that the failure to bring defendant to trial was not occasioned by any of the reasons set forth in Code, 62-3-21, which provides for discharge of an accused if there be three regular terms of court, after the indictment is found against him, without a trial, unless such failure to try was caused by one of the several reasons set forth therein.

On October 10, 1957, defendant was reindicted by the grand jury attending the October, 1957, term of the Circuit Court of Monongalia County, the indictment being No. 6598 and identical with, and charging the same offenses, as indictment No. 6235. An order of nolle prosequi was subsequently entered as to indictment No. 6235 on November 11, 1957.

The defendant moved to quash indictment No. 6598 on the ground that three terms had elapsed without trial since the return of the original indictment, and also demurred to the indictment, which motion and demurrer were overruled and the case proceeded to trial on November 18, 1957.

On the trial of the case, the evidence is undisputed that the entry into the building was accomplished by a breaking, and there was also sufficient evidence to sustain the jury's verdict of guilty. The defense was an alibi, supported by statements of members of the defendant's family that he had remained at home the evening and night of June 21, the night the offense was committed, all of whom fixed the date by a brother-in-law's attendance at National Guard drill that evening. National Guard records were introduced to show that the brother-in-law attended drill the night of June 22, rather than June 21.

The jury returned an oral verdict finding the defendant 'guilty as charged under both counts of the indictment.', which the court accepted as a general verdict of guilty, and the verdict was recorded as: 'We, the jury, find the defendant, Finley Gregory, guilty as charged in the within indictment.', to all of which the defendant objected.

Sixteen assignments of error are made in this Court, only five of which merit any discussion on this writ of error.

The Sixth Amendment to the Constitution of the United States provides in part: '* * * In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, * * *.' Article III, Section 14, of the Constitution of this State provides in part: 'Trials of crimes, and misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men, public, without unreasonable delay, * * *.' In implementing the last quoted constitutional provision, the Legislature of this State, in Code, 63-3-21, provided as follows: 'Every person charged with felony, and remanded to a court of competent jurisdiction for trial, shall be forever discharged from prosecution for the offense, if there be three regular terms of such court, after the indictment is found against him, without a trial, unless the failure to try him was caused by his insanity; or by the witnesses for the State being enticed or kept away, or prevented from attending by sickness or inevitable accident; or by a continuance granted on the motion of the accused; or by reason of his escaping from jail, or failing to appear according to his recognizance, or of the inability of the jury to agree in their verdict.' The only change in this section since the formation of this State is the substitution of the words 'court of competent jurisdiction' for the original words 'circuit courts'.

The defendant in this case was indicted approxmiately three and one-half years before he was taken into custody upon the charge for which he was indicted, and this Court long ago recognized the fact that the Legislature in enacting the provisions of Code, 62-3-21, could not have intended that a defendant would be forever discharged if more than three terms of court elapsed under such circumstances.

In State v. Kellison, 56 W.Va. 690, 47 S.E. 166, the word 'remanded' was construed as if the statute had used the word 'held.' Inasmuch as the defendant in this case did not submit himself to the jurisdiction of the Circuit Court of Monongalia County until the 25th day of January, 1957, that being fifteen days after the January term had begun, this Court holds that the January term of that court is not to be counted as one of the three terms ensuing prior to the time that the defendant was brought to trial.

State's Instruction No. 1, given over objection of the defendant, told the jury that under the indictment in this case they could find one of four verdicts, to-wit: (1) Guilty of breaking and entering; (2) guilty of entering without breaking; (3) guilty of grand larceny; or (4) not guilty. Furthermore, State's Instruction No. 3 informed the jury that the crime of grand larceny is committed when one or more persons take, steal and carry away anything of value belonging to another, against the will of the owner, of the value of $20 or more. There could have been no doubt about the correctness of this instruction had this defendant been brought to trial prior to February 19, 1957. However, the Legislature of this State, on February 19, 1957, passed the following act effective from passage:

'An Act to amend and reenact section thirteen, article three, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to grand and petit larceny distinguished; penalties.

'Be it enacted by the Legislature of West Virginia:

'That section thirteen, article three, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:

'Section 13. Grand and Petit Larceny Distinguished; Penalties.--If any person commit simple larceny of goods or chattels, he shall, if they be of the value of...