State v. Humphreys
| Decision Date | 11 December 1945 |
| Docket Number | 9727. |
| Parties | STATE v. HUMPHREYS. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. Conviction for a crime may be had upon the uncorroborated testimony of an accomplice; but in such case the testimony must be received with caution and the jury should, upon request, be so instructed. Syllabus 10 and parts of the opinion in State v. Betsall, 11 W.Va. 703, and the statements in the opinions in State v. Thompson, 21 W.Va. 741, State v. Morgan, 35 W.Va. 260, 13 S.E 385, and State v. Musgrave, 43 W.Va. 672, 28 S.E 813, in so far as they are inconsistent with this holding are disapproved.
2. Upon the trial of an indictment for a felony, it is reversible error to give, over the objection of the defendant, an instruction which tells the jury that he may be convicted upon the uncorroborated testimony of an accomplice but which does not also inform the jury that it must receive such testimony with caution, unless such cautionary direction is given by some other instruction.
G. G. Duff, of Summersville, for plaintiff in error.
Ira J. Partlow, Atty. Gen., Ralph M. Hiner, Asst. Atty. Gen., and Frances Haney Atwood, Sp. Atty. Gen., for defendant in error.
The defendant, O. E. Humphreys, having been jointly indicted with Okey Keenan for the crime of feloniously and burglariously breaking and entering the dwelling house of Mr. and Mrs. Isaac Wilmoth, in the daytime on February 21, 1944, in Nicholas County, West Virginia, was tried, convicted and sentenced to imprisonment in the penitentiary. To review the judgment of the trial court, a writ of error was granted by this Court.
Upon arraignment, and prior to the trial of the defendant, Keenan pleaded guilty to the offense charged in the indictment. At the trial of the defendant, which was held in the Circuit Court of Nicholas County on September 7, 1944, Keenan appeared as the main witness for the prosecution, and the record shows that his testimony was the only evidence introduced by the State which definitely connected the defendant with the crime, or upon which the conviction could be sustained. It is conceded that without the testimony given by Keenan upon the trial, the charge against the defendant must fail, as Keenan was the sole witness, as a participant, to the commission of the crime with which the defendant was charged and to which Keenan confessed his own guilt.
According to Keenan, who testified upon the trial as the principal witness for the State, he and the defendant, on the morning of February 21, 1944, met at the home of the latter in Wilderness District in Nicholas County. From that place they went to a sawmill operated by a man named Moses, where they helped to roll some logs on a skidway. After a time they started on a tour of a chain of game traps which the defendant had previously set in the woods in that general section. Keenan did not know where Isaac Wilmoth lived until the defendant took him there at the time the offense was committed. When they went to the house and found it empty and locked, the defendant told Keenan he was going in, and both of them did so. The defendant used his knife to spring the lock and in that way opened the door. While they were in the house, where they remained for about fifteen minutes, they ate some food and drank some rum which they found in different parts of the building. Humphreys took a watch, a pair of pliers, a pearl handled knife and a clock key. Neither took the additional articles mentioned in the indictment, which were a neck chain and a gold ring. The defendant gave the watch and the pliers to Keenan, and two or three days later Keenan traded the watch to J. D. Wood, a carrier of a daily newspaper, who lived in Fayette County. After they left the house they went along the road toward Mount Lookout. On the road they met an acquaintance, Alex Amick, who was in his automobile, and he drove them to Legg's Store at Mount Lookout, which was about two or three miles from the Wilmoth home. There they remained until about five-thirty o'clock in the evening, after which time they separated to go home. While at the store the defendant ate some food, but Keenan ate nothing. He was with the defendant all that day, from eight o'clock in the morning until after they left the Legg Store.
The testimony of Keenan as to the commission of the offense was denied by the defendant, and Keenan's statement of the events which occurred both before and after the house was entered were contradicted, in some of the details, by other witnesses in the case.
The defendant testified at the trial in his own defense. His testimony was, in substance, that he had no connection with the crime and that he knew nothing of it until two or three days after it was committed. During the winters of 1943 and 1944, the defendant had a chain of traps in the woods, none of which was on the Wilmoth property. It was his custom each day to visit and inspect the traps. About nine o'clock on the morning of February 21, 1944, he and his eleven year old son, Carl Humphreys, accompanied by Keenan, went on a trip to examine the traps. They looked at some of them and after a time came to field near, but not in sight of, the Wilmoth home. There Keenan said he was hungry and he asked the defendant who lived at that place. The defendant told Keenan that Wilmoth lived there, and Keenan replied that he knew Wilmoth and that he was going there to get something to eat. The defendant told Keenan to continue with the defendant and his son, but Keenan, when informed that they were going about six miles further, refused to accompany them. The defendant and his son left Keenan standing at that place and went on to the traps. In the afternoon, when they returned to the place at which they had earlier parted company with Keenan, they found him standing at or near the spot where they had separated. The defendant asked Keenan if he had eaten at the Wilmoth house, and Keenan replied that he had not because there was nobody at home. Shortly after the defendant and his son rejoined Keenan, the son left them to examine other traps on his way home. The defendant and Keenan then went down a road which leads to Route 51, and after that they went along a creek where they caught a mink. They then encountered Alex Amick, got in the automobile which he was driving, and went with him to Legg's Store at Mount Lookout, where he stopped, and the three got out of the automobile. After they entered the store, the defendant ate some food but Keenan did not, saying that he did not want anything to eat. Later they got in the automobile with Amick, who drove them to a place known as 'Drunkard's Roost', where they left Amick and went to their homes.
The evidence discloses that a few days after the offense was committed Keenan traded the watch to Wood, who reported his possession of it to an officer. No possession of any of the articles mentioned in the indictment was traced to or fixed upon the defendant by any evidence except the testimony of Keenan. Keenan, upon being questioned, admitted his participation in the crime, and his statement resulted in the arrest and the joint indictment of Keenan and the defendant.
The jury returned a verdict of guilty as charged in the indictment against the defendant. Pending the motion of the defendant for a new trial, Keenan, whose sentence had been deferred, was called into court, and, under oath, completely repudiated his testimony at the trial in which he had implicated the defendant, and admitted that he had committed perjury in so testifying. He exonerated the defendant of any participation in the crime, and gave as his reason for swearing falsely against the defendant before the jury that he was mad at him, that he wanted to get even with the defendant for whipping him some time before the crime was committed, and that he did not decide to tell the truth until he realized that the guilt had been fixed upon him and he was sure he would be punished for it. Keenan did not reveal his possession of the watch until it was traced to him through Wood. During the period between the return of the verdict on September 7, 1944, and the motion for a new trial on September 12, 1944, Keenan and the defendant occupied the same cell or section in the jail and at that time they were friendly.
The testimony of Keenan in which he repudiates his evidence at the trial was transcribed and filed upon the motion of the defendant for a new trial, and is incorporated in the record.
On September 12, 1944, Keenan's application for release on probation was denied and judgment of imprisonment in the state penitentiary for a period of from one to fifteen years was entered against him by the court. On November 21, 1944, the court overruled the motion of the defendant for a new trial, confirmed the verdict of the jury, and entered judgment that he be confined and imprisoned in the penitentiary for an indeterminate period.
The defendant assigns numerous errors upon which he relies for reversal. They may properly be considered as embodying four main grounds: (1) The conviction should be set aside because it rests solely upon the uncorroborated testimony of Keenan, an accomplice; (2) it was error to give Instruction No. 3 offered by the State; (3) it was error to refuse Instruction No. 10, offered by the defendant; and (4) the conviction of the defendant being solely dependent upon the uncorroborated testimony of his accomplice, Keenan, his complete repudiation, under oath, before the entry of the judgment, of his testimony before the jury, renders that testimony so incredible and unworthy of belief that it was error for the court to confirm the verdict and enter judgment upon it.
The contention of the...
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