State v. Hobbs, Nos. 14311

CourtSupreme Court of West Virginia
Writing for the CourtMcGRAW; NEELY
Citation168 W.Va. 13,282 S.E.2d 258
PartiesSTATE of West Virginia v. Jack HOBBS. STATE of West Virginia v. Harold K. WHITMAN.
Decision Date29 July 1981
Docket Number14327,Nos. 14311

Page 258

282 S.E.2d 258
168 W.Va. 13
STATE of West Virginia
v.
Jack HOBBS.
STATE of West Virginia
v.
Harold K. WHITMAN.
Nos. 14311, 14327.
Supreme Court of Appeals of West Virginia.
July 29, 1981.
Rehearing Denied Oct. 8, 1981.

Page 260

Syllabus by the Court

1. An election official indicted upon a charge of knowingly making a false return of the result of the votes cast for a candidate in an election in violation of W.Va.Code § 3-9-1 (1979 Replacement Vol.) may be convicted of such offense upon proof by the State that such election official fraudulently, illegally or deceitfully caused votes to be entered upon a ballot for a candidate for whom the voter did not intend or desire to vote.

2. To establish a prima facie case of unconstitutional jury selection methods under the Sixth Amendment's fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of [168 W.Va. 14] such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

3. Persons not included on a county's personal property tax list do not constitute a cognizable group whose exclusion from the list of potential petit jurors violates a defendant's Sixth Amendment right to a jury composed of a fair cross-section of the community.

4. W.Va.Code § 56-6-19 (1966), requiring a trial court to submit in writing all proposed jury instructions to counsel for both parties, applies only to instructions which relate to material issues in the case, and does not apply to a supplemental instruction to the jury to deliberate further.

Barrett, Chafin, Lowry & Hampton and Ray L. Hampton, II, Huntington, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., Willard A. Sullivan, Jr., Sp. Asst. Atty. Gen., Charleston, for defendant in error.

McGRAW, Justice:

The appellants, Jack Hobbs and Harold K. Whitman, appeal from the final judgment of the Circuit Court of Logan County, the Honorable Fred L. Fox II presiding as Special Judge, which adjudged the appellants guilty, upon a jury verdict, of making

Page 261

a false return of the result of the votes cast for a candidate at an election in violation of W.Va.Code § 3-9-1 (1979 Replacement Vol.), and sentenced them to imprisonment in the State Penitentiary for a term of not less than one nor more than ten years. These two cases were consolidated for decision because they present several identical issues. Both appellants assert that there was a material variance in the allegations in the indictment and the proof adduced at trial, that the trial juries [168 W.Va. 15] were unconstitutionally selected and empanelled, and that the trial court erred in not conducting an evidentiary hearing with respect to the selection of the jurors. In addition, appellant Hobbs contends that the trial court erred in not polling the jury on the question of prejudicial pre-trial publicity at his trial, and appellant Whitman alleges that the trial court influenced the jury verdict and coerced the jury into reaching a guilty verdict in his case. We find the errors alleged by the appellants to be without merit and we affirm the judgment of the circuit court.

The appellants were duly appointed election commissioners of Logan County during the primary election held on May 11, 1976, and both served at the Striker No. 2 precinct. On December 15, 1976, a special grand jury sitting in and for the Circuit Court of Logan County returned a multiple count, joint indictment charging the appellants and others with having committed various violations of the election laws of this State. The Honorable H. Harvey Oakley, Judge of the Circuit Court of Logan County, had previously disqualified himself from presiding over the special grand jury, and the Honorable Fred L. Fox II, Judge of the Circuit Court of Marion County, was temporarily assigned by this Court to hear all matters resulting from the special grand jury investigation.

The appellants and others named in the indictments filed several pre-trial motions challenging, among other things, the sufficiency of the indictment and the constitutionality of the manner in which the special grand jury was empanelled. The indictees also requested severance and separate trials. All of these motions were denied by the circuit court by order entered on May 23, 1977. The indictees sought to attack the circuit court's order by prohibition in this Court. A moulded writ was awarded on the issue of severance and separate trials, but we affirmed the circuit court's rulings on the sufficiency of the indictment and the constitutionality of the selection of the special grand jury. State ex rel. Whitman v. Fox, W.Va., 236 S.E.2d 565 (1977).

[168 W.Va. 16] On September 26, 1977, a petit jury was empanelled to try appellant Whitman, and on September 27, 1977, he was found guilty of the crime of making a false return of the result of votes cast for a candidate during the May, 1976 primary election as charged in the third count of the indictment.

On September 28, 1977, a jury was selected to try appellant Hobbs, and on September 30, 1977, a verdict of guilty was returned against him on the same charge which was contained in the fourth count of the indictment. The circuit court entered orders of conviction for appellants Whitman and Hobbs on September 29, 1977 and September 30, 1977, respectively. On September 30, 1977, the court sentenced both appellants to a term of imprisonment in the penitentiary for not less than one nor more than ten years. On May 5, 1978, the appellants were resentenced in order to permit them to appeal their convictions.

I

The appellants first assert that there was a material variance between the allegations in the indictment and the proof adduced at trial. The third and fourth counts of the indictment read as follows:

THIRD COUNT

The said Harold K. Whitman, on the 11th day of May, 1976, in the said County of Logan, did unlawfully and feloniously and knowingly make, while serving, being and having been appointed an election commissioner, a false return on the result of the votes cast for a candidate, to-wit: candidate Vernon Dingess and others, at Striker # 2 precinct during the

Page 262

May 11, 1976 primary election held pursuant to law, against the peace and dignity of the State.
FOURTH COUNT

The said Jack Hobbs, on the 11th day of May, 1976, in the said County of Logan, did unlawfully and feloniously and knowingly make while serving, being and having been appointed an election [168 W.Va. 17] commissioner, a false return of the result of the votes cast for a candidate, to-wit: candidate Vernon Dingess and others, at Striker # 2 precinct during the May 11, 1976 primary election held pursuant to law, against the peace and dignity of the State.

At the trial of appellant Hobbs, numerous witnesses were called to testify, including persons who had voted at the Striker # 2 precinct during the May 11, 1976 primary election. Several witnesses, all first-time voters, indicated that the appellant had approached them and asked if they needed assistance in voting. Several other witnesses testified that they were illiterate or had difficulty reading and had requested the appellant's aid in voting. None of the witnesses was physically disabled and none was shown how to vote on a sample voting machine. Witnesses testified that the appellant instead entered the voting booth with them, in some cases alone and in other cases accompanied by an unidentified person, and pulled the levers on the voting machine after having been told by the voters which candidates to vote for. One witness testified that she was not aware that the appellant was actually voting for her and that she thought he was simply demonstrating how to use the machine. Another witness testified that appellant Hobbs voted for more candidates than she told him she wanted to vote for. Several witnesses testified that the appellant flipped the levers so quickly that they could not say whether he voted for the candidates they had requested. None of the witnesses could testify with certainty that appellant Hobbs had voted for the candidates they had requested. The two poll clerks who were working at Striker # 2 precinct on May 11, 1976, testified that the appellant had made several phone calls from the precinct on that day for the purpose of checking voter registrations and that his signature appeared on the Certification of Democratic Votes Cast in Logan County. One poll clerk testified that she saw the appellant leave the polling place several times during the day. The county clerk testified that Striker # 2 precinct was provided with a sample voting machine, that persons requesting assistance in voting were to be shown how to vote on the sample machine, that illerate or disabled persons could be assisted[168 W.Va. 18] in voting by two election commissioners of different parties, and that appellant Hobbs was a Democrat chosen by the Democratic Executive Committee to serve as election commissioner.

Much of the testimony adduced at the trial of appellant Whitman came from the same witnesses who testified at the trial of appellant Hobbs and dealt with the fact that Hobbs entered the voting booth and assisted voters without an election commissioner of the Republican Party being present. A poll clerk testified that appellant Whitman was the lone Republican election commissioner present at Striker # 2 precinct on May 11, 1976. The county clerk testified that the appellant had been chosen as an election commissioner by the Republican Executive Committee. Testimony indicated that appellant Whitman had made several phone calls from the polling place to check voter registrations. A witness who had voted at the Striker # 2 precinct on the day of the...

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20 practice notes
  • State v. Moss, No. 17063
    • United States
    • Supreme Court of West Virginia
    • December 19, 1988
    ...any possibility of prejudice." State v. Williams, 160 W.Va. 19, 24, 230 S.E.2d 742, 746 (1976) (emphasis in original); cf. State v. Hobbs, 168 W.Va. 13, 282 S.E.2d 258 (1981) (probable prejudice did not exist since publicity was not inherently 3 For example, the prosecutor stated that the a......
  • Fisher v. State, No. 56050
    • United States
    • United States State Supreme Court of Mississippi
    • October 16, 1985
    ...newspapers (as distinguished from the truth of the contents thereof) are within the judicial knowledge of the Court. See, State v. Hobbs, 282 S.E.2d 258, 274 (W.Va.1981); Jackson v. Godwin, 400 F.2d 529, 536 (5th 13 See discussion in the statement of the facts in Section II(A) at pages 208-......
  • State v. Mills, No. 32551.
    • United States
    • Supreme Court of West Virginia
    • November 17, 2005
    ...cause the jurors to have an unfavorable impression of a defendant, which raises questions of effects upon the jury. In State v. Hobbs, 168 W.Va. 13, 282 S.E.2d 258 (1981), for instance, this Court found that probable prejudice did not exist since the publicity at issue was not inherently pr......
  • State v. McClanahan, No. 22224
    • United States
    • Supreme Court of West Virginia
    • December 15, 1994
    ...juror, but simply the decision of a majority of twelve. See, United States v. Martin, 740 F.2d 299 (4th Cir.1984). In State v. Hobbs, 168 W.Va. 13, 282 S.E.2d 258 (1981), this Court recognized that the key question where an "Allen" type instruction is given is whether the trial court's inst......
  • Request a trial to view additional results
20 cases
  • State v. Moss, No. 17063
    • United States
    • Supreme Court of West Virginia
    • December 19, 1988
    ...any possibility of prejudice." State v. Williams, 160 W.Va. 19, 24, 230 S.E.2d 742, 746 (1976) (emphasis in original); cf. State v. Hobbs, 168 W.Va. 13, 282 S.E.2d 258 (1981) (probable prejudice did not exist since publicity was not inherently 3 For example, the prosecutor stated that the a......
  • Fisher v. State, No. 56050
    • United States
    • United States State Supreme Court of Mississippi
    • October 16, 1985
    ...newspapers (as distinguished from the truth of the contents thereof) are within the judicial knowledge of the Court. See, State v. Hobbs, 282 S.E.2d 258, 274 (W.Va.1981); Jackson v. Godwin, 400 F.2d 529, 536 (5th 13 See discussion in the statement of the facts in Section II(A) at pages 208-......
  • State v. Mills, No. 32551.
    • United States
    • Supreme Court of West Virginia
    • November 17, 2005
    ...cause the jurors to have an unfavorable impression of a defendant, which raises questions of effects upon the jury. In State v. Hobbs, 168 W.Va. 13, 282 S.E.2d 258 (1981), for instance, this Court found that probable prejudice did not exist since the publicity at issue was not inherently pr......
  • State v. McClanahan, No. 22224
    • United States
    • Supreme Court of West Virginia
    • December 15, 1994
    ...juror, but simply the decision of a majority of twelve. See, United States v. Martin, 740 F.2d 299 (4th Cir.1984). In State v. Hobbs, 168 W.Va. 13, 282 S.E.2d 258 (1981), this Court recognized that the key question where an "Allen" type instruction is given is whether the trial court's inst......
  • Request a trial to view additional results

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