State v. Hoke et al.
| Decision Date | 23 March 1915 |
| Citation | 76 W.Va. 36 |
| Court | West Virginia Supreme Court |
| Parties | State v. Hoke et al. |
1. Criminal Law Harmless Error Ruling on Demurrer.
If the count in an indictment on which a conviction is had, is good, it is immaterial whether a demurrer to other counts should have been sustained. If error is committed in overruling the demurrer, it is clearly not prejudicial to the accused. (p. 39).
2. Courts Order Calling Special Term Statement of Necessity Sufficiency.
A vacation order of the circuit judge, calling a special term of court and requiring a grand jury to be summoned, which recites that a necessity therefor exists, sufficiently shows that the term was properly called. (p. 39).
3. Grand Jury Failure to Issue Venire Facias Effect on Indictment.
The provisions of Sec, 3, Ch. 157, Code 1913, respecting the time for issuing a venire for the grand jury, and summoning the clerk of the county court to assist in the drawing thereof, are merely directory. If the jurors are drawn, in the manner provided, from the list furnished by the county court, and actually attend at court and are duly sworn and serve as such, it matters not that they were not actually summoned. (p. 39).
4. Criminal Law Presumption as to Grand Jury.
If it appears from the record that some of the grand jurors were not those who were regularly drawn, it will be presumed, in the absence of a contrary showing, that they were legally summoned to take the place of the drawn jurors who failed to appear. (p. 39).
5. Same Trial Presence of Witness.
It is within the judicial discretion of the trial court to permit a witness for the state, who is familiar with the facts on which the prosecuting attorney relies to establish the guilt of the accused, to be present in court during the trial to aid him in conducting the examination of other witnesses. (p. 39).
6. Same Jury Administration of Oath Presumption.
If the record recites that the jury "were elected and sworn according to law," it will be presumed that the proper oath was duly administered. (p. 41).
7. Same Custody of Jury Sheriff Administration of Oath.
It is not necessary that the. sheriff be sworn to keep the jury together during the trial. He is a sworn officer of court and the law imposes that duty upon him, and the oath could impose no additional duty or responsibility. Instructions to him by the court, concerning his duty, are sufficient. (p.41).
8. Same Presence of Accused Necessity Proceeding After Conviction.
It is not necessary, after conviction and final judgment, that the accused should be present in court when an order is made permitting the withdrawal of certain original papers used as evidence on the trial, and directing the filing of certified copies thereof with the clerk. (p. 41).
9. Same Harmless Error Admission of Evidence.
Copies of invoices of the goods alleged to be stolen, offered in evidence to identify the property and verified by affidavits thereto attached, furnishes no ground for reversal of a judgment of conviction, when it appears that such invoices were proven to be true copies of the originals, by a witness who was present at the trial and testified that he had compared them with the originals and found them to be true copies thereof. (p. 41).
10. Witnesses Competency Insanity Presumption Objection.
The court must determine the competency of a witness, and a motion to set aside the verdict on the ground that an insane witness was permitted to testify, supported by affidavits tending to show irrational conduct by such witness at times, is properly overruled, when it does not appear that he was ever adjudged a lunatic, and was well known to the accused who made no objection to his testifying when offered as a witness. (p. 42).
11. Same Competency Insanity.
To render such witness incompetent, his mental aberration must be sufficient to negative trustworthiness at the time his testimony is given. (p. 42).
(Lynch, Judge, absent.)
Error to Circuit Court, Greenbrier County.
Theodore Hoke and another were convicted of grand larceny, and bring error.
Affirmed.
John W. Arbuckle and John L. Rowan, for plaintiffs in error.
A. A. Lilly, Attorney General, and John B. Morrison and J.E.Brown, Assistant Attorneys General, for the State.
Theodore Hoke and his two sons, Jesse and Carl, were jointly indicted and tried in the circuit court of Greenbrier county for grand larceny. Carl Hoke was acquitted. Theodore and Jesse Hoke were convicted and sentenced to serve terms in the penitentiary, and they bring error. Numerous assignments are made in the petition for writ of error, but most of them seem to have been abandoned as they are not mentioned in brief of counsel.
The indictment contains two counts, the first charging defendants with stealing, taking and carrying away twenty-five pairs of men's shoes of the value of $65.55, sixty-nine pairs of ladies' shoes of the value of $166.80, and thirty-six pairs of children's shoes of the value of $48.60, property of the Hamilton-Brown Shoe Company; and the second count charging them with having bought the same goods from another person, whose name is unknown, knowing them to have been stolen. It is proven that the shoes were stolen from a box car of the Chesapeake & Ohio Railway Company while they were in transit from St. Louis to Boston. The shoes were in boxes, and the State's theory is that the car was entered, either at Hart's Run, a way station in Greenbrier county, or at some other station west of that point where the train had stopped temporarily, by the defendants, or some one or more of them, and the boxes dumped off at Hart's Run, on the night of the 8th, or early morning of the 9th, of September, 1912, and carried to a lumber camp a mile or two from the railroad. Some of the shoes were found in the possession of Theodore Hoke and Jesse Hoke and identified as the property of the Hamilton-Brown Shoe Company, which were contained in the boxes lost from the carload lot of shoes shipped over the Chesapeake & Ohio railway. None of the defendants testified, and there is ample evidence in the record to support the verdict.
It is urged that the demurrer to the second count of the indictment should have been sustained. This point is rendered immaterial by the fact that defendants were convicted on the first count only. They were clearly not prejudiced by the bad count, if such it was, a question we do not decide. Early v. Commonwealth, 86 Va. 921, and Johnson v. Commonwealth, 102 Va. 927.
The indictment was found at a special grand jury term, called by the judge for the 11th of March, 1913. It is insisted that, because the order entered calling the special term does not state that "the public interest required it," lack of jurisdiction is shown, and the proceedings had at such term are void. This point is clearly without merit. State v. Shanley, 38 W. Va. 516. The order docs recite, "a necessity existing therefore, it is ordered'etc. That shows compliance with the statute, even if it be necessary that the order should state the reason for calling the special term, a question we do not decide.
The fact that the clerk did not issue a venire facias for the grand jurors, at least thirty days before the term, does not affect the indictment. That provision of Sec. 3, Ch. 157, Code 1913, is merely directory. State v. Welzel, 75 W. Va 7, 83 S. E. 68. It is urged as error that the grand jurors drawn to serve at the special term did not constitute the jury that found the indictment, and that there is no order showing that some of the drawn jurors had failed to appear and others were substituted, pursuant to Sec. 4, Ch. 157, Code 1913. It appears that two or three persons who served as jurors were not among the list that was drawn. But no objection was made in the lower court to the constitution of the grand jury, and it does not appear that any of the persons serving as such were not legally qualified. Hence, it must be presumed that the jury was legally constituted. State v. Tucker, 52 W. Va. 420. It will not be presumed that the circuit court failed to perform its duty in the matter of making up the grand jury. Error must appear.
It is assigned as error that the court permitted C.D. Duke, special agent for the railroad company and a witness for the State, to remain at the bar of the court during the progress of the trial, over the objection of defendants, after they had moved to have all the witnesses excluded from the courtroom until they should be called to testify. It is the general practice to grant such request when made by either party to a cause, and it is done in the interest of justice, for the purpose of eliciting from each particular witness the truth as to the facts about which he is to testify. But it is held by many authorities, perhaps by the weight of them, that the granting of such request rests in the sound discretion of the trial court, that it is a privilege usually accorded by the court but can not be demanded as matter of right. But whatever is the rule, no authorities are cited by counsel, and we find none, supporting the proposition, that it is error to permit the prosecuting witness, or some witness who is familiar with the facts on which the state expects to rely to establish the guilt of the prisoner, to remain at the bar of the court for the purpose of prompting the attorney for the state regarding facts which he knows are within the knowledge of certain witnesses to be examined. Witness Duke was the detective for the railroad company that ferreted out the crime, and traced it, as he supposed, to the door of defendants. Consequently he possessed information that enabled him to render valuable aid to the prosecuting attorney. It was certainly no abuse of judicial discretion to permit him to remain at the bar during the examination of other witnesses. Says Thompson on Trials, Vol. 1, (2nd ed.), Sec. 276, the rule of separating the witnesses "is a matter of sound judicial...
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