State v. Hayes, 10370

• Decision Date: 23 October 1951
• Docket Number: No. 10370,10370
• Citation: 136 W.Va. 199,67 S.E.2d 9
• Court: West Virginia Supreme Court
• Parties: STATE, v. HAYES et al.

Page 9

67 S.E.2d 9

136 W.Va. 199

STATE, v. HAYES et al.

No. 10370.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 6, 1951.

Decided Oct. 23, 1951.

Syllabus by the Court.

1. An indictment, charging grand larceny, which alleges that the property taken is the money, goods, effects and property of 'Eastern Gas and Fuel Association', sufficiently alleges the ownership of the property which was the subject of the alleged larceny, and is not demurrable on the ground that it insufficiently alleges ownership.

2. 'It is the duty of the trial judge in any cause to refrain from expressing any opinion upon the weight to be given to the evidence of any witness, but it is likewise his duty to see that in the examination of witnesses they understand the questions propounded to them before they are required to answer, and that counsel in asking a question does not place upon the witness's former statements a strained or unwarranted construction.' State v. McCausland, 82 W.Va. 525, Pt. 6 Syl. .

3. 'It is not error to refuse instructions on 'reasonable doubt' the substance of which has already been given in other instructions.' State v. Cook, 94 W.Va. 167, Pt. 3 Syl. .

4. In this jurisdiction where there is competent evidence tending to support a pertinent theory of a case, it is error for the trial court to refuse a proper instruction, presenting such theory, when so requested.

5. In a criminal proceeding the written statement of a defendant made to an arresting officer, which does not constitute an admission of guilt, is inadmissible as a confession; but, if such statement in essential details contradicts the testimony of the maker thereof as to certain essential matters, it is admissible in evidence.

6. It is within the province of a trial court to amend an ineptly drawn jury verdict, so that the amended verdict expresses in clear language the intent of the jury, as shown by the original verdict. Upon the verdict being amended, the jury should be sent to the jury room with the amended verdict, and, on its return therefrom, the trial court should ascertain, by interrogating the jury, whether the verdict, as amended, is its verdict.

7. State v. Beale, 104 W.Va. 617, distinguished.

8. Under Code, 52-1-4, as amended and reenacted by Chapter 80, Article 1, Section 4, Acts of the Legislature, 1945, a person who shall have been drawn as a petit juror in a criminal case, and who has served as a petit juror in the same court within a period of two years prior thereto is disqualified from serving as a petit juror within said two-year inhibitory period. The name of such juror, if he is challenged, shall be stricken from the panel, and the failure of the trial court in such circumstance to do so, over objection, is reversible error.

9. 'The general rule, inhibiting allowance of a new trial for matter constituting a principal cause of challenge to a juror, existing before the juror was elected and sworn, unknown to the complaining party until after verdict, not disclosed on a thorough voir dire examination, and undiscoverable by the exercise of ordinary diligence, unless it appears from the whole case that the complainant suffered injustice by reason of the disqualification; applies in criminal cases * * *.' State v. Harris, 69 W.Va. 244, Syl. .

K. K. Hall, Madison, for plaintiffs in error.

William C. Marland, Atty. Gen., Thaddeus D. Kauffelt, Asst. Atty. Gen., for defendant in error.

RILEY, Judge.

In the Circuit Court of Boone County, the defendants, William Arlie Hayes and Earl Dennis Chapman, each nineteen years of age, and residing at Culloden in Cabell County, were jointly indicted, tried and convicted of grand larceny of a quantity of copper cable and ten railroad frog switches.

On July 20, 1950, at the suggestion of the defendant, William Arlie Hayes, the defendants drove from their home in Cabell County to Jarrell's Branch in Boone County, in a Dodge Pick-up Truck, borrowed from the father of the defendant Chapman, for the purpose of obtaining metal to be sold as junk. In the afternoon of that day they drove to a slate dump of the Eastern Gas and Fuel Associates, evidently a Massachusetts trust, which was also used as a supply yard. There they loaded on the truck a quantity of copper feeder cable and ten frog switches of a total value of three hundred and twelve dollars, which had been pointed out to the defendant Hayes by his uncle, Ray Martin, as abandoned property. The slate dump was located wholly on the property of Eastern Gas and Fuel Associations, and along or near the latter's private road which led to the property of Eastern Gas and Fuel Associations from the public road.

The State introduced evidence to the effect that, while the defendants were loading the material on the truck, another truck approached, and the defendants ran up the hill and hid in the woods until it had passed. This the defendants deny, but they testified they were picking berries near the slate dump when the other truck approached. After loading the truck the defendants drove away, and were arrested near Danville by a Deputy Sheriff of Boone County, who had been notified of the alleged theft by an employee of Eastern Gas and Fuel Associates.

The deputy sheriff testified that immediately prior to the arrest his attention was directed to the truck, in which he observed a length of feeder cable and some railroad frogs lying uncovered in the back thereof. He further testified that defendants told him that they had purchased the equipment, but, when he asked them for a bill of sale, they were unable to produce one. The deputy sheriff then arrested the defendants, and took them to the county jail.

At the county jail defendants were questioned by Corporal G. C. Scott, a member of the Department of Public Safety, who took separate written statements from the defendants, which, over objection, were admitted into evidence as State's Exhibit No. 1 and State's Exhibit No. 2, which statements read as follows:

'Madison, West Virginia,

July 20, 1950.

'Statement of Earl Dennis Chapman

'I left home this morning around 9:30 A. M. and I picked up William Arlie Hayes at Sovines Sugar Market and we came to Hurricane, W. Va. where we moved Raymond Kerns for three dollars and took it in gasoline and oil. Yesterday William Hayes had told me where there was some copper and scrap iron at a State dump at Wharton, W. Va. We left Hurricane around 12 P. M. going to Wharton. When we got to Bim we turned across the creek and went up to the State Dump and started loading the copper feeder cable into the truck. Another truck came by and Hayes and I ran up the hill and hid in the woods until it went by. We came back down and finished loading the copper. Then we started loading the frogs. We loaded a few and another truck came by and we got in the truck and left. When we got to Danville, W. Va. a Deputy Sheriff stopped us and brought us to jail.

'I have read the above and certify it is true and correct.

'Signed Earl Dennis Chapman.

'Witnesses:

Cecil Marcum

Princy Jarrell.'

'Madison, West Virginia,

July 20, 1950.

'Statement of William Arlie Hayes

'Earl Chapman and I left Hurricane around noon July 20, 1950 in Chapman's pickup truck for Wharton, W. Va. Some of the boys near Barboursville and my home had told me that there was a lot of junk around Wharton. A maetay and a Sovine boy, Raymond Kerns, Culloden, W. Va. and Bob Guthrie, Culloden, W. Va. told us about this junk. We drove to Wharton and turned left across the bridge where the school house burnt and went up the hollow to the State Dump and turned around and started loading up. We got one long piece of feeder copper cable, then we got a number of iron frogs, which are used for track in the mine. We left and came to Madison where an officer stopped and arrested us. We were taking the junk home and the next day we would have taken it to the junk yard.

'I have read the above and certify it is true and correct.

'Signed William Arlie Hayes

'Witnesses:

G. M. Scott.'

At the time these statements were admitted, the court instructed the jury that Chapman's statement should be considered as evidence on the question of that defendant's guilt or innocence, and that Hayes' statement should be considered only as to the question of his guilt or innocence: 'In other words', the court instructed, 'these statements are severally evidence to be considered by you as against the respective makers of these respective statements.'

Defendants testified at the trial that they lived in a vicinity in which there were no coal mines, and they adduced evidence to the effect that they were unfamiliar with the operation of coal mines and did not know whether the mine of Eastern Gas and Fuel Associates was in operation or if the property had been abandoned.

At the trial the defendants demurred to and moved to quash the indictment on the ground that the 'Eastern Gas and Fuel Associates' was not an entity at law, and, therefore, ownership was not properly alleged, which demurrer and motion were overruled. The defendants then entered a plea of not guilty to the indictment, and, the jury having been impanelled, the defendants presented the sole defense that they believed the property had been abandoned.

At the trial the court refused to give defendants' instructions Nos. 1, 4, 5, 7, 10, 11 and 12, based upon defendants' theory of defense that the property taken had been abandoned. Likewise the court refused to give defendants' instructions Nos. 18, 21, 22 and 23, which dealt with the question of reasonable doubt and the elements of the crime which the State must prove before a verdict of guilty could be returned by the jury.

The jury returned the verdict: 'We, the jurors. We jury find the defendants guilty with recommend minimum sentence and also recommend probation.' Counsel for defendant, having objected to the verdict, as returned, the court asked the clerk to hand him the indictment, on the back of which the...