State v. Hackle
| Decision Date | 19 May 1931 |
| Docket Number | 6897. |
| Citation | 158 S.E. 708,110 W.Va. 485 |
| Parties | STATE v. HACKLE. |
| Court | West Virginia Supreme Court |
Submitted May 12, 1931.
Syllabus by the Court.
Jury is sole judge of weight of evidence and credibility of witnesses; weight of evidence to establish fact is not dependent upon mere number of witnesses; evidence held sufficient to support conviction of robbery while armed with a dangerous weapon.
The jury is the sole judge of the weight of evidence and credibility of witnesses. And the weight of evidence to establish a fact is not dependent upon mere number of witnesses.
Allegations of indictment held to sufficiently charge crime of robbery as defined by common law (Code 1931, 61-2-12).
An indictment which charges defendant with being armed with a dangerous weapon and with making a felonious assault upon L K., and putting her in fear, then and there from her person and against her will feloniously and violently did steal take and carry away certain lawful money, of a certain value the property of one J. K., sufficiently charges a special property in, and possession of, the money in the person robbed, and is a good common-law indictment for robbery.
In prosecution for robbery while armed with dangerous weapon instruction limiting jury to one of two verdicts, namely, guilty as charged, or not guilty, held reversible error, where evidence bearing on possession of dangerous weapon was conflicting.
Where, in a trial for armed robbery, there is a sharp conflict in the evidence as to whether defendant had a dangerous weapon in his possession at the time of the alleged offense, it is reversible error to limit the jury to one of two verdicts, namely, guilty as charged, or not guilty.
In prosecution for robbery while armed with dangerous weapon, instruction to jury on subject of credibility of witnesses held not erroneous.
Similar instruction on what may be considered by the jury respecting credibility of witnesses, given in State v. Staley, 45 W.Va. 792, 32 S.E. 198, and commented upon in State v. Magdich, 105 W.Va. 585, 143 S.E. 348, approved.
Error to Circuit Court, Marshall County.
Charles Hackle was convicted of robbery while armed with a dangerous weapon, and he brings error.
Judgment reversed, verdict set aside, and a new trial awarded.
Everett F. Moore, of Moundsville, and John C. Hopkins, of Cameron, for plaintiff in error.
Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.
Convicted of robbery, being armed with a dangerous weapon, and sentenced to confinement for 20 years, defendant prosecutes error.
The indictment charges that Charles Hackle, William Hall, and Jim Goodnight, being armed with a dangerous weapon, did make an assault on Lena Kershuk feloniously and put her in bodily fear, and certain money of the value of $50, the money and property of John Kershuk, from the person and against the will of the said Lena Kershuk feloniously and violently did steal, take, and carry away. Defendant elected to be tried separately with the above-stated result.
According to the evidence of defendant and his coindictees, they, at the suggestion of Hall, who stated that his brother, a few days before, had found 3 1/2 gallons of liquor on the Bloyd farm within a short distance from Moundsville, in Marshall county, took defendant's car and drove from Moundsville to the Bloyd farm, which they searched for concealed liquor that they found none, but did find a barrel of mash concealed in the ground and covered up with brush and loose earth about 500 yards from the residence on the Bloyd farm; that, while they continued their search, being at all times together, Mrs. Kershuk came out of the house in her yard and exhibited a loaded shotgun which she pointed at them and asked them to come to the house if they wanted liquor and she would give them a drink, at the same time making some indecent gesture with her clothes; that they were at no time within 125 yards of the house, and, being unsuccessful in their search for liquor, returned to their car, which they had parked in the lane leading from the public road up to the Bloyd house and drove back to Moundsville, where they were all arrested that afternoon. According to the evidence of Lena Kershuk, she and her three children, ages 2, 5, and 7 years, respectively, were preparing to eat their noonday meal when the boy of 7 years informed her that a man was in the house searching it. She then discovered him searching her rooms and that he entered her living room, raised up the mattress, and found the money belonging to her husband in a handkerchief under the mattress, being $50, in two $20 bills and one $10 bill, which he had saved to pay as rent on the farm; that when he took the money she got her shotgun and tried to prevent its being taken, and he presented a pistol and threatened to shoot her, when she dropped the shotgun and he took the money and went away. At the time, she said she saw, through the window, two other men near the house. She immediately started to the filling station of Joe Tkach, about one-half hour's walk from her house, for the purpose of obtaining officials, and discovered the parked car, describing it, and giving the license number, which she noticed at the mouth of the lane leading from the hard road to her house. After she got out on the road on her journey to the filling station, she noticed this same car pass her going towards Moundsville, with the man who had robbed her and two other men therein. Upon arriving at the filling station, she informed Joe Tkach of what had happened, and he telephoned the sheriff. The sheriff and deputy immediately came out to the Bloyd place and receiving the details of the alleged robbery, went back to Moundsville, and, by use of the license number of the car, found and arrested defendant and put him in jail. The same afternoon the two coindictees were arrested and also put in jail. Mrs. Kershuk came to the jail and identified defendant as the man who had taken the money. According to Joe Tkach's testimony, which corroborated that of Lena Kershuk with respect to her coming to the filling station and giving information, he went that afternoon about 5 o'clock to the dwelling house where the robbery was supposed to have been committed and found fresh tracks leading from an oatfield towards the house and one large track which he followed to within 20 or 30 feet of the house, where the character of the ground made it impossible to follow the track further. He also found, about 20 yards from the house, the same footprint leading away from the house, which he followed about 150 or 200 yards, when it was joined with other tracks which proceeded out toward the hard road. The officers simply detail the information leading up to the arrest, the arrest, and statements made by the prisoners with respect to their movements that day. Enough of the main parts of the evidence has been detailed for the purpose of showing that there is a sharp conflict in the evidence for the state and that of defendant. Defendant and his coindictees say they were never in less than 125 yards of the dwelling on that day; while the prosecuting witness says that defendant entered her house and with his pistol put her in fear and took the $50 from under the mattress.
One of the assignments of error is that the evidence is insufficient to convict the prisoner of any crime. To sustain this point of error, State v. Flanagan, 26 W.Va. 122, State v. Bennett, 93 W.Va. 548, 117 S.E. 371, and State v. Dudley, 96 W.Va. 481, 123 S.E. 241, and like cases are cited where this court has held that the evidence in those cases, circumstantial in character, was not sufficient to convict, beyond reasonable doubt. In this case, we have a sharp conflict in the evidence. If the jury believed the prosecuting witness, there was ample evidence upon which to sustain a conviction. On the other hand, if the jury believed the defendant and his witnesses, then there was no crime whatever committed by him. The jury believed the woman and not the defendant and his coindictees. They saw the witnesses, their manner of testifying, and so did the trial judge. The weight of verbal testimony and credibility of witnesses is always a question for the jury and not for this court. That rule of law is so well settled that citations would be wearisome. As a corollary of this well-established rule it has been consistently held by this court, that in considering a motion to set aside a verdict as contrary to the evidence, all of the oral evidence of the movant which is in conflict with that of the successful party must be discarded, and then, if such evidence which remains, together with all the justifiable inferences which the jury could reasonably draw therefrom, is sufficient to sustain the verdict, the motion should be refused. This is but another way of saying that the jury is the exclusive judge of the weight of evidence and credibility of witnesses. Taking the evidence of the prosecuting witness as true, and the jury, by its verdict, has said that it was true, there is evidence sufficient to sustain a verdict against defendant for the commission of a crime. The weight of evidence does not depend upon the mere number of witnesses. Jaggie v. Davis Colliery Co., 75 W.Va. 370, 84 S.E. 941. It would sustain a verdict for grand larceny.
But does the evidence convict defendant of robbery, being armed with a deadly weapon? This query is raised by defendant's motion in arrest of judgment, by his instruction, refused telling the jury that they should not convict him of armed robbery, and by defendant's instruction offered which would have told the jury what verdicts they were warranted in finding under the evidence. The trial court took...
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