State v. Hudson, No. 13371

• Court: Supreme Court of West Virginia
• Writing for the Court: BERRY
• Citation: 157 W.Va. 939,206 S.E.2d 415
• Parties: STATE of West Virginia v. Robert Eugene HUDSON.
• Decision Date: 09 July 1974
• Docket Number: No. 13371

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206 S.E.2d 415 157 W.Va. 939 STATE of West Virginia
v.
Robert Eugene HUDSON. No. 13371. Supreme Court of Appeals of West Virginia. July 9, 1974.

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Syllabus by the Court

1. It is the province of the jury to ascertain the grade of offense, and if the evidence is sufficient to warrant a conviction of the crime charged in the indictment, the jury is justified in returning a verdict of a lesser included offense.

2. Animus furandi, or the intent to steal or to feloniously deprive the owner permanently of his property, is an essential element in the crime of robbery.

3. Where the evidence warrants the conviction of the crime charged and there is no independent evidence that would warrant a conviction of lesser offenses an instruction relative to lesser offenses need not be given.

4. 'Immaterial, unnecessary and harmless averments, which might be omitted without affecting the charge in an indictment against the accused and which need not be proved, may be properly considered and rejected as surplusage.' Point 1, syllabus, State v. McGraw, 140 W.Va. 547, 85 S.E.2d 849.

5. The statute, Code, 62--3--21, as amended, requiring the defendant to be tried within three terms after the indictment is returned and the constitutional requirement for a speedy trial are complied with where the defendant has been promptly tried and convicted by a jury although proper sentence is not entered by the court until a later term of court.

[157 W.Va. 940] Howard M. Persinger, Jr., Williamson, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen.,

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E. Leslie Hoffman, III, Asst. Atty. Gen., Charleston, for defendant in error.

BERRY, Justice:

This is an appeal by Robert Eugene Hudson, the defendant below and hereinafter referred to as defendant, from a final judgment of the Circuit Court of Mingo County entered February 2, 1973 wherein the Court overruled the defendant's motion in arrest of judgment and defendant's supplemental motion for judgment or acquittal notwithstanding the verdict, or for a new trial and sentenced the defendant to a term of not less than five nor more than eighteen years in the penitentiary. The defendant alleges that numerous errors were committed during the trial of the case which were prejudicial to the defendant and require reversal of his conviction for unarmed robbery. This Court granted defendant's appeal on June 4, 1973 and the case was submitted for decision on April 30, 1974 upon the record and briefs filed on behalf of the respective parties.

The defendant was jointly indicted with one Lindsay Spaulding for armed robbery by the grand jury of Mingo County at its October, 1969 term. Defendant's motion for a separate trial was granted and the case was continued until the February, 1970 term of court. Defendant entered a plea of not guilty and the case was tried by a jury on March 30, 1970 and the jury found the defendant guilty of unarmed robbery.

The prosecuting witness was one Ransom Lovings White, who was eighty-five years old at the time of the trial, and who testified that two men came to his home about 9:00 p.m. on June 24, 1969. White testified he recognized the defendant and since he knew the defendant, White came out onto the porch, sat down and began a friendly conversation with the two visitors. However, according to White, after a few minutes passed the man [157 W.Va. 941] sitting beside White suddenly struck him in the face with his fist, and the man sitting across from White, whom White identified in court as the defendant, jumped up and pointed a pistol at White and told him, 'If you move, I'll shoot your brains out.h The you move, I'll shoot your brains out.' The tied him up, and then searched the house for money and goods. White testified that the men took $188 in cash, two shotguns and several other items.

During the trial several witnesses testified for the defendant that the defendant and his wife arrived at the City Cafe in Delbarton shortly before dark on June 24, 1969 and stayed there until about 9:30 p.m. at which time the defendant left by himself and returned approximately a half hour later. Defendant testified he walked down the road about a mile to borrow his father-in-law's car and then returned. The defendant testified that after drinking one or two more beers he and his wife and one Emmett Copley drove to the Taylorville Drive-in to get something to eat. This testimony was corroborated by Copley, defendant's wife and a waitress who was at the drive-in.

After the March 30, 1970 jury verdict of guilty of unarmed robbery was returned, the court on April 6 took under advisement the defendant's motion to set aside the verdict and to grant a new trial. On May 18, 1970 the court overruled defendant's motion and orally sentenced the defendant to not less than five nor more than eighteen years in prison, but granted the defendant a 90 day stay of execution for appeal purposes. On May 22, 1970 an order was entered which improperly sentenced the defendant to a term of not less than five nor more than twenty years. No notice of appeal was filed in connection with the May 22nd order but on August 12, 1970 the court granted an additional 120 day stay of execution. On August 30, 1970 the court, realizing the error in the May 22nd sentencing order, entered an order commanding the defendant to appear for resentencing on September 3, 1970. However, the defendant did not appear on that date and the court directed that a capias be issued

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for him. The return on the capias in the clerk's office revealed that [157 W.Va. 942] the capias was not delivered to the defendant until December 24, 1972. On January...