State v. I. W. Larue.

• Decision Date: 24 April 1925
• Docket Number: (No. 4901.)
• Citation: 98 W.Va. 677
• Court: West Virginia Supreme Court
• Parties: State v. I. W. Larue.

98 W.Va. 677

State

v.I. W. Larue.

(No. 4901.)

Supreme Court of Appeals of West Virginia.

Submitted March 24, 1925.

Decided April 24, 1925.

1. Indictment and Information Indictment for Embezzlement as Set Out in Statute Held Sufficient.

An indictment for embezzlement, as set out in sectionnineteen, of chapter one hundred forty-five of the co: le, Is sufficient (p. 680).

(Embezzlement, 20 C. J., § 55.)

2. Criminal Law J try Venireman's Opinion to Disqualify Him Must be Substantial; Findings of Trial Court as to Whether Venireman is Disqualified by Opinion will Not be Set Aside, except for Manifest Error.

To have the effect of disqualifying a, venireman, his opinion must be substantial and not mere impression which will not interfere with his fairness. The question presented as to his qualification is one of mixed law and fact. The finding of the trial court upon that issue will not be set aside unless the error is plainly manifest. (p. 684).

(Criminal Law, 17 C. J. § 8580; Juries, 85 C. J. §§ 364, 367, 458.) Indictment and Information Offensesl Representing One Continuous Transaction May le Joined as Distinct Offenses in Different Counts of Indictment.

If all of the offenses charged in one or more counts of an indictment represent but one continuous transaction, it is well settled in this state, that they may be so joined as distinct offenses in different counts, and that where properly joined as distinct offenses, unless they appear on the face of the indictment to involve a different transaction, a motion to quash for mis-joinder should be overruled. (p. 686.) (Indictments and Informations, 31 C. J. § 844.)

Same Accused is Not Entitled, as Blatter of Right, to Compel Election Between Several Offenses Joined as Separate Counts in One Indictment Springing Out of Substantially Same Transaction.

A joinder as separate counts in one indictment of several offenses, which though distinct in point of law, yet spring out of substantially the same transaction, cannot operate to the legal prejudice of the accused; and he is not entitled as a matter of right in such case to compel an election. (p. 687). (Indictments and Informations. 31 C. J. § 844.)

5. Criminal Law Refusal to Compel Prosecution to Elect Upon

What Act of Embezzlement Conviction Will be Ashed Not Error.

On the trial of an indictment for embezzlement, there is no error in the court refusing to compel the prosecution to elect upon what alleged act of embezzlement a conviction will be askeel, as embezzlement may, and often does, consist of many acts done in a series of years by virtue of the relations existing between the employer and the employee. (p. 688).

(Criminal Law, 1(i C. J. § 2178.)

6. Same Receiving in Evidence Entry by Person in Regular course of Business Recording Oral or Written Report of Other Persons to Him in Regular Course of Business Held Not Error.

Where an entry is made by one person in the regular course of business, recording an oral or written report, made to him by one or more other persons in the regular course of business, of a transaction lying in the personal knowledge of the latter, there is no objection to receiving that entry under the exception to the hearsay rule of books of original entry, provided the practical inconvenience of producing on the stand the numerous persons thus concerned would in the particular case outweigh the probable utility of doing so. (p. 689).

(Criminal Law. 16 C..1. § 1527 [1920 Anno.])

7. Same Verification of Books of Entry by Supervising Officer of Corporation Held to Render Them Admissible.

In such case, for the record of entries made in the established course of business on the original books of entry of a corporation, to be admissible as evidence, it is sufficient if the books were verified on the stand by a supervising officer who knew them to be the books of original entry, of the department or corporation under his supervision or control. (p. 690).

(Criminal Law, 16 C. J. § 2495.)

S. Same Instruction Stating Law in Abstract and Another Applying Stated Proposition to Facts in Issue May be Treated as Single Instruction.

An instruction stating the law in the abstract and another applying the legal stated proposition to the facts in issue may be treated as a single instruction. (p. 696).

(Criminal Law. 16 C. J. 17 C. J. § 3579.!

9. Same Conduct of Trial Not Reviewed. Except for Abuse of Discretion of Trial Judge.

The conduct of the trial must necessarily be left largely to the discretion of the presiding judge a discretion which cannot, in its very nature, be made a subject of review, by this Court, except in a clear case of abuse of that discretion. (p. 695). (Embezzlement. 20 C. J. § 79.)

(Note: Parenthetical references by Editors. C. J. Cvc. Not part of syllabi.)

Error to Circuit Court, Mason County.

I. W. Larue was convicted of embezzlement, and he brings error.

Affirmed.

F. G. Musgrave and Somerville & Somerville, for plaintiff in error.

E. T. England, Attorney General, R. Dennis Steed, Assistant Attorney General, and Robert L. Hogg, Prosecuting Attorney, for the State.

Woods, Judge:

The defendant was indicted for embezzlement, and on the trial was found guilt and by the judgment complained of adjudged to serve a term of two y^ears in the penitentiary.

Our statute, section nineteen, chapter one hundred fortyfive, code, provides: "If any officer, agent, clerk or servant of this state, or of any county, district, school district or municipal corporation, * * * or other corporation, * * * embezzle or fraudulently convert to his own use, bullion, money, bank notes, security for money, or any effects or property of any other person, which shall have come into his possession, or been placed under his care or management, by virtue of his office, place or employment, he shall be guilty of larceny thereof. In the prosecution of any such officer, agent, clerk or servant, charged with such embezzlement, fraudulent conversion or larceny, if it appear that the possession of such bullion, money, bank notes, security for money, or other property is unlawfully withheld by such officer, agent, clerk or servant, from the person or persons entitled thereto, and that such officer, agent, clerk or servant has failed or refused to restore or account for such bullion, money, bank notes, security for money, or other property, wdthin thirty days after proper demand has been made therefor, such accused officer, agent, clerk or servant shall be presumed to be guilty of such offense."

In 1917, Lewis District, in Mason County, voted bonds for the construction of hard surfaced roads in said district, at which time, William Jividen, Hugh Daugherty and I. S. Dabney were members of the county court of said county. The defendant was then engaged in handling and selling cement, at the City of Point Pleasant, He had erected buildings for the storing and keeping of said material. On July 3, 1917, the said county court entered into a contract with the defendant to furnish all the cement, to be used in the construction of the cement roads in Lewds District in an amount not to exceed thirty-three thousand barrels. The cement was shipped to the defendant whereupon he would be paid by the county court, and after such payment he was permitted to retain the cement in his exclusive custody and control, for the use of the county. "While this cement belonging to the county court, and having been paid for by it, was still in the custody of the said defendant the state maintains that the defendant made sale of an enormous quantity thereof to various individuals throughout Mason county, and the said defendant received and appropriated to his own use the money therefor. An inspection of the records of the county court was made to determine how much cement the defendant had received compensation for from said county court and this record was checked against the shipments received by the defendant. The state's evidence tended to show that the defendant during this entire transaction handled only Universal Portland Cement. The records of this company showed that it had shipped 19, 307 barrels of cement to the defendant, The records of the county court showed that 19, 371 barrels of cement were purchased and paid for by the county court, The state introduced evidence to show that numerous parties aside from the Marietta Manufacturing Company purchased from the defendant 137 barrels of cement, and that the said Marietta Manufacturing Company alone purchased 2480 barrels, for which it paid the defendant $6,528.77. The state C put further evidence in the record tending to show that the county court used but 15, 820 barrels of cement. In April, 1922, the county court of Mason county caused to be served on the defendant the following notice: "You are respectfully hereby notified to account for and pay over at once to the County Court of Mason County any and all property now in your hands belonging to the said County Court of Mason Count, y. You are further hereby notified to account for and pay over to the said County Court of Mason County at once the proceeds arising from the sale of any and all property belonging to the said County Court of Mason County and j sold by you while in your custody; and more especially are you notified to account for and pay over the proceeds arising from the sale of cement and sacks belonging to the said County Court of Mason County and especially the following sales are to be accounted for by you at once, inasmuch as the said cement sold was the property of the said County Court of Mason County: November 8, 1918, 173 barrels of cement sold to The Marietta Manufacturing Company; January 25, 1919, 21 sacks of cement sold to The Marietta Manufacturing Company; January 29, 1919, 23 sacks cement sold to the Marietta Manufacturing Company. You are further notified to account for and pay over the proceeds arising from the following additional sales made by you to the said Marietta Manufacturing Company, the said cement being...