State v. James Powers.
| Decision Date | 26 September 1922 |
| Docket Number | 4546. [a1] |
| Citation | 91 W.Va. 737 |
| Court | West Virginia Supreme Court |
| Parties | State v. James Powers. |
Submitted September 12, 1922. Decided September 26, 1922.
cretion of Court; Burden Upon Accused to Shoiv Good Cause for Change of Venue.
An application for change of venue in a criminal case is addressed to the sound discretion of the trial judge, and the burden is upon the prisoner to show good cause for the change. (p. 745.)
Time of Application to Support Change of Venue. If the cause on which the application for change of venu is ill feeling or prejudice against the prisoner, such caus must be shown to exist at the time the application is made, not that it existed at some distant prior date. The existence of local prejudice and ill feeling against the prisoner at a term of court held three months before the time of making an application, is not sufficient to warrant the assumption that such feeling existed at the time of application, especially where there are numerous affidavits from representative citizens that no such feeling or prejudice exists. (p. 745.)
as Principals.
Where two or more persons conspire and confederate together to commit larceny and each takes some part in the commission of the crime, one or more to commit the act while the others watch to prevent surprise; or station themselves at a convenient distance to favor escape, or assist in asportation or concealment of the stolen property, thus lending aid and encouragement to the one who commits the act, all are in a common cause and are constructively present at the taking, if the larceny, in fact, be committed; and all are punishable as principals. (p. 745.)
Flight After Larceny Held Admissible.
In the trial of an indictment for the larceny of an automobile, and the facts and circumstances warrant the conclusion that the persons indicted stole and drove away the car in furtherance of a common purpose and when overtaken in the asportation of the car flee from arrest, and some of them resist arrest, it is not error to admit in evidence the instrumentalities found in their possession or secreted by them in their flight, such as revolvers, flash lights, cartridges, maps, glycerine, raw cotton, gauze, and the like, with explanation of their common uses. (p. 751.)
Circumstance of Guilt.
Possession of a stolen car within a short distance from and within a half hour after the theft, the car then being driven from the place of theft, is a strong circumstance tending to show that the persons found in possession are the thieves, and the jury may consider it in connection with all the other facts and circumstances in proof, although considered by itself it would not be prima facie evidence of their guilt. (p. 751.)
Instructions attempting to define "reasonable doubt" are discouraged, but, as given in this case, are not cause for reversal, (p. 752.)
Error to Circuit Court, Doddridge County. James Powers was convicted of grand larceny, and he brings error.
Affirmed.
G. W. Farr and W. R. Brown, for plaintiff in error. E. T. England, Attorney General, and R. A. Blessing and R. Dennis Steed, Assistant Attorneys General, for the State.
Defendant, James Powers, prosecutes this writ of error from a judgment of the circuit court pronounced on the 3d day of December, 1921, sentencing him to confinement in the penitentiary for five years for the crime of grand larceny. The indictment charges him and three other persons, Young, Bertone, and Hall, wng car, the property of J. A. Baith feloniously stealing and carrying away a Ford tourirr and C. A. Dowler.
The defendants, who were strangers in the town of West Union, were first seen there together about dark on the evening of April 22, 1921. A girl, 15 years of age, said she saw them together that day on a west bound passenger train which arrived at West Union about 7 P. M., two of them having boarded the train at Clarksburg, and the other two at Salem. Young and Powers deny having been on that train. They both said they (Young and Powers) got together near Long Run the night before, slept in a barn, got breakfast at a farm house, boarded a passenger train at Long Run and left it before it reached West Union, and walked into the town. There wras evidence tending to corroborate them in this particular. A short time before, and after dusk they were seen by various persons in various parts of the town, and their actions and movements were of such an unusual character as to excite comment and suspicion, and the chief of police was notified to be on watch for them. One of them carried a small satchel, and Powers being larger than the others and wearing spectacles, was easily identified. They were seen on the street near the garage from which the ear was taken. The chief of police passed them in his car near the outskirts of the town on the road leading towards Sistersville, between 9 and 10 o'clock that night, and after going a short distance beyond them, turned his car and came back, but they had disappeared from the highway. About 10:30 he again drove over that road to ascertain their movements, and observed one of them only on or near the road at about the same point, which was about one-half mile from the garage from which the car was stolen. The car was taken between 11 o'clock and 12:30 that night. A slight drizzle of rain had begun and the night was dark. The four men in the car were seen by Dale Scott about 12:30 a short distance from the town on the road leading to Sistersville, when they stopped the car and inquired from him directions to Centreville. The roads were muddy, the night dark, and after various vicissitudes occasioned by the mud, darkness and lack of knowledge of the proper route, testified to by various witnesses to whom they gave evasive answers to pertinent questions, they reached the village of Centreville and stopped to purchase more gasoline from Underwood, when Lloyd A. Riggs approached them and said the car had been stolen at West Union, and that they could go no farther. Young denied that the car was stolen. It appears that about this time Mr. Barr, at West Union, had discovered the theft of his car and had telephoned to various persons on the roads leading from West Union to be on the outlook for it, and was talking over the telephone with Riggs at the time this car drove up to get the gasoline, and gave him the license number of the car. Hall, one of the defendants, appears to have been out of the car standing near it at the time Riggs accosted them. The driver, Young, immediately started up his car, and they all seemed to be in a hurry to get away, so much so that they forgot to pay for the gasoline, and had proceeded a short distance when the car stopped and one of the men in the rear of the car paid for the gasoline out of the rear, and they immediately went forward very swiftly. Hall started in the opposite direction, and took to the hills near the town. The car proceeded a short distance and again stuck on a hill near the residence of Wm. H. Barnhart, where they all abandoned it and proceeded rapidly up the hill on foot. Defendant was the last to leave the car, and had in his hand the satchel, which, after proceeding a short distance, he gave to one of the other defendants. They disappeared over the hill. Immediately a hue and cry was raised and many persons joined in the chase. The sheriff from West Union arrived shortly afterwards, and he and Squire Meredith participated in the chase. The three men, Powers, Young and Bertone, were discovered several miles from the place they left the car, and near the mouth of Indian Creek, Bertone being crouched on the bank of the stream, and Powers and Young in the act of crossing in a boat. They were commanded to return to the shore, and replied that as soon as they could turn the boat they would come back, but on the contrary went to the opposite shore and leaving the boat ran up the bank through the brush and on up the hill. When Bertone was approached he drew a revolver and threatened to shoot any one who came near him, retreated down the stream, and was not followed at that time. He was afterwards captured. Powers and Young were promptly followed. They separated near the brow of the hill, one going to the right and the other to the left. Young was first followed by his pursuers, and captured a short distance over the hill. Powers was afterwards discovered ingeniously secreted in a slip or slide on the hillside. He had a small steel punch in his pocket, and a loaded revolver was found in the mud where he was concealed. Hall was afterwards captured, and all three were taken before Squire Meredith at Centreville.
The trail of the three men was followed from where the car was abandoned, and in the edge of a brush pile near a wood the satchel was found freshly covered with 'leaves, and
about fifteen feet from the satchel a pint bottle containing glycerine also freshly covered with leaves, was found. On the other side of the brush pile, opposite the place where the satchel was found, a small torn Rand & McNally map of Tennessee was discovered, also freshly secreted in the leaves. The satchel contained a small roll of wire used for hanging pictures, a box of cartridges, soap, some tobacco, gauze, a small bit of raw cotton, some liniment, a bottle of sal hepatica, a railroad schedule, some old sox, a shirt, and a cork.
Defendants were jailed, and the indictment followed. At the August term of court Young confessed the theft, and was sentenced. Bertone was tried and acquitted. At the following November term of court this...
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