State v. Hankish

• Decision Date: 19 June 1962
• Docket Number: No. 12119,12119
• Citation: 126 S.E.2d 42,147 W.Va. 123
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Paul HANKISH.

Page 42

126 S.E.2d 42

147 W.Va. 123

STATE of West Virginia v. Paul HANKISH.

No. 12119.

Supreme Court of Appeals of West Virginia.

Submitted April 24, 1962.

Decided June 19, 1962.

Syllabus by the Court

1. 'A judgment in a criminal case will not be reversed merely because of error committed by the trial court but only when the error has been prejudicial to the accused.' Pt. 8, syllabus, State v. Taylor, 130 W.Va. 74 .

2. The proper method of challenging, before the trial of a case, alleged irregularities in the selection, drawing, or impaneling of jurors, is by plea in abatement. 3. A verdict will not be set aside for any irregularity in drawing, summoning or impaneling a jury unless properly objected to before the swearing of the jury or unless it is shown that the party making the objection was injured thereby.

4. A trial court is not only permitted to take part in a trial but has the duty to do so in order to facilitate its orderly progress, and the remarks or conduct of the court in performing its duty will not constitute error if they are such as do not discriminate against or prejudice the defendant.

5. The right of cross-examination is not an unlimited one and it is subject to the discretionary power of a trial court to restrict or limit such cross-examination where it is justified.

A. Blake Billingslea, Harrison Conaway, Fairmont, for plaintiff in error.

C. Donald Robertson, Atty. Gen., Claude A. Joyce, Asst. Atty. Gen., Charleston, for defendant in error.

BERRY, Judge.

The defendant, Paul Hankish, was indicted in a joint indictment along with three other persons for breaking and entering the Community Market in the City of Fairmont, Marion County, West Virginia. He was tried in the Criminal Court of Marion County and found guilty by a jury of said Court and sentenced by the Court on July 6, 1960, to a term of from one to ten years in the State Penitentiary at Moundsville.

The Circuit Court of Marion County refused to grant a writ of error to this judgment on February 8, 1961, and upon application to this Court, a writ of error and supersedeas was granted to said judgment on June 12, 1961. At the request of the defendant, a continuance was granted to April 24, 1962, at which time the case was submitted on briefs for decision.

The facts in this case are ouite simple and uncontradicted. About 3 o'clock in the morning of September 6, 1959, a citizen who lived near the Community Market in Fairmont heard noises coming from the building and called the city police. A cruiser car with two officers was dispatched immediately to investigate the report. Upon investigation, the officers ascertained that someone was in the building in question; in fact, they actually saw two people inside. Other city and county officers were summoned to the scene. The building was surrounded by the police and a lock was shot off the door, after which two officers entered the building.

A crowbar, acetylene cutting torch and screw drivers not belonging to the store were found in the premises. The lock on one of the doors had been tampered with, and about the time two of the officers entered the store, three men, including the defendant, ran out of the building where they were placed under arrest by other officers. The defendant who was identified as one of the men seen fleeing from the building was wearing brown cotton gloves at the time of his arrest. He offered no evidence in his defense during the trial.

Twenty-six errors were assigned in the petition for a writ of error, and twenty-two errors listed in the defendant's brief. However, only three errors were discussed or argued in the brief, and apparently the other errors were abandoned by the defendant in the argument contained in his brief. However, notwithstanding this action on the part of the defendant, we are of the opinion, after examining the other assigned errors, they do not constitute prejudicial error, and in most instances have no merit, as clearly indicated by the facts and the errors assigned asserting that the verdict was not supported by the evidence. The record clearly discloses that the defendant was guilty of the offense chareged. There was no denial thereof; thus no other verdict would have been warranted under the undisputed evidence in this case. State v. Taylor, 130 W.Va. 74, 42 S.E.2d 549; State v. Justice, 135 W.Va. 852, 65 S.E.2d 743.

The three assignments of error argued in the defendant's brief which are considered herein are: (1) The trial court erred in overruling the defendant's motion to quash the array or panel of jurors used in the trial of this case; (2) prejudicial error was committed by the court's treatment of counsel for the defendant and the court's prejudicial remarks; and, (3) reversible error was committed by the trial court in the refusal to give fifteen of the thirty-eight instructions offered by the defendant.

In connection with the first assigned error, two attorneys for the defendant made an affidavit that the twenty jurors used in the panel from which the jury was selected to try this case were not drawn, selected or summoned in accordance with the provisions of Code, 52-1-15, in that they were drawn or summoned by a deputy clerk who at the time he did so was not in the presence of the court which would constitute an illegal drawing or summoning of the twenty jurors. A written motion to quash the panel or array of these twenty jurors was filed listing the twenty names, and stating they were not drawn in accordance with Code, 52-1-7; that they were not drawn by an order of the court, and were not drawn by the clerk in the presence of the court in accordance with Code, 52-1-15. The motion to quash was signed by an attorney for the defendant but was not verified. This motion was overruled by the trial court.

The statutes dealing with the selection of jurors have been held to be directory and error predicated thereon will not be reviewed after verdict unless it is apparent the accused was prejudiced thereby. State v. Emblem, 46 W.Va. 326, 33 S.E. 223; State v. Huff, 80 W.Va. 468, 92 S.E. 681; Walker v. Robinson, 141 W.Va. 563, 91 S.E.2d 468. A verdict will not be set aside for any irregularity in drawing, summoning or impaneling a jury unless properly objected to before the swearing of the jury or unless it is shown that the party making the objection was injured thereby. Code, 56-6-16. Sweeney v. Baker, 13 W.Va. 158, 31 Am.Rep. 757; Flesher v. Hale, 22 W.Va. 44; Garrett v. Patton, 81 W.Va. 771, 95 S.E. 437. The Flesher case held that even a verdict returned by a jury including a disqualified juror would not be set aside if the party was not injured thereby. In the case at bar there is no contention that any of the jurors was disqualified. The only contention made was that the jury was drawn irregularly, and there is no contention or showing that the defendant was injured by the method of drawing or selecting the jury in question. It has also been held that such jurors may be selected upon oral order of the court. State v. Price, 96 W.Va. 498, 123 S.E. 283; State v. Sauls, 97 W.Va. 184, 124 S.E. 670.

Wide latitude has been given to the selection or obtaining of jurors under circumstances similar to those in the case at bar. State v. Hall, 31 W.Va. 505, 7 S.E. 422; State v. Mills, 33 W.Va. 455, 10 S.E. 808. In any event, the proper method of challenging, before the trial of a case, alleged irregularities in the selection, drawing or impaneling of jurors is by a plea in abatement before any alleged error in the selection of same can be asserted. 14 Am.Jur., Criminal Law, § 263; 22 C.J.S. Criminal Law §§ 426, 427; State v. Taylor, 57 W.Va. 228, 50 S.E. 247; State v. Cook, 81 W.Va. 686, 95 S.E. 792; State v. Young, 82 W.Va. 714, 97 S.E. 134. There was no plea in abatement filed in this case, and the motion to quash, which properly should relate only to the indictment, could not be considered as equivalent to a plea in abatement, since it was not in the proper form to be such plea and was not verified. Therefore, this matter was not properly pleaded, and for that reason alone should not be considered. See State v. Cook, supra, and State v. Young, supra; State v. DeBoard, 119 W.Va. 396, 194 S.E. 349.

The second assignment of error dealing with the court's treatment of counsel for the defendant, and its prejudicial remarks, is based upon the actions of the trial court in overruling motions of c...