State v. Jim Bud Muleett.

• Decision Date: 06 November 1923
• Docket Number: No. 4907.,4907.
• Citation: 94 W.Va. 680
• Court: West Virginia Supreme Court
• Parties: State v. Jim Bud Muleett.

94 W.Va. 680

State

v.Jim Bud Muleett.

No. 4907.

Supreme Court of Appeals of West Virginia.

Submitted October 30, 1923.

Decided November 6, 1923.

Burglary Evidence Held Insufficient to Sustain Conviction.

Where the only evidence adduced to support the charge that defendant entered a store building with intent to steal is that six months after the robbery, part of the stolen goods were found in his possession and part in the possession of his father who lived nearby, a verdict finding defendant guilty as charged must be set aside as without proof to support it.

Error to Circuit Court, Wayne County.

Jim Bud Mullett was convicted of burglary, and he brings error. Judgment reversed, verdict set aside, and defendant awarded a new trial.

Darnall & Lovins and C. E. Copen, for plaintiff in error. E. T. England, Attorney General, and R. Dennis Steed, Assistant Attorney General, for the State.

Meredith, Judge:

Defendant was indicted upon two counts: first, that he did unlawfully and feloniously break and enter a certain store building, belonging to J. B. Crum and Henry Copley, with intent to steal, take and carry away certain goods and chattels therein belonging to the said Crum and Copley, and that he did unlawfully and feloniously steal, take and carry away 24 yards of calico, of the value of $2.64; eight pairs of shoes, of the value of $32.00; and one lot of khaki pants, of the value of $21.00; the property of Crum and Copley, partners, against the peace and dignity of the state. The second count is like the first except that it omits the element of "breaking" in connection with the entering of the store. Upon a verdict of "Guilty as charged in the second count of the within indictment, '' but not guilty as charged in the first count, defendant was sentenced to serve two years in the penitentiary, and he brings error.

But one instruction was given for the state, and it is not objected to here. Neither does defendant specify any errors relative to the admission or rejection of testimony. The case, therefore, must turn upon the general assignment that the verdict is contrary to the law and the evidence.

The evidence for the state consists of the testimony of J. B. Crum, the alleged part owner of the store goods, W. B. Copley, a deputy sheriff, and John B. Lowe and Boxie Stepp, neighbors of defendant. It is shown that on the night of July 10, 1921, the store building described in the indictment was entered through the back door, which seems to have been forced, and a quantity of shoes, pants, calico, suspenders and scissors, estimated to be worth from $50.00 to $60.00, were stolen therefrom. About six months later, in the late fall of 1921, having been informed that the stolen goods were in the possession of defendant, who lived in Martin County, Kentucky, two miles distant from the scene of the robbery, J. B. Crum with a number of officers, and armed, it is claimed, with a search warrant, searched the premises not only of. defendant, but those of his father and of his father-in-law, who resided nearby. As we interpret the uncertain testimony of Crum and Copley, they found at the home of the defendant a quantity of calico, some of it made up into dresses. They may also have found a few belts, but Crum did not claim them. The calico was found in a grip, said by Crum to have been setting near the door, but by officer Copley to have been hid under the bed. They may, however, have been referring to different grips and premises. Some of the dresses were hanging on the wall, others were in a wash tub in defendant's house. At the home of defendant's father they found some khaki pants. Though it was admitted that calico and khaki pants were handled generally in the stores in the vicinity, Crum claimed to be able to identify the pattern of the calico and the pants as part of the missing goods. He fixed the value of the recovered articles at the time of the trial at $5.00.

Other calico, apparently all made up into clothing, was found in the possession of Roxie Stepp. Crum attempted to identify it as part of the material taken from the store. Her explanation of her possession. of the calico is that it was given to her by defendant. No reason for the gift is given except that while she was engaged in hunting for mint for her baby sister, defendant volunteered to ferry her across the river, assisted in finding the mint, and drew the calico from a hollow tree where it was hid and presented it to her. The date of this occurrence was fixed by her as having been in the fall or summer not more than two years prior to the trial. The case was tried February 13, 1923.

The gist of Lowe's testimony is that on the evening of the last Friday in January, 1922, defendant and four others came to his home with two or three suit-cases, containing some calico. One of the party said something about Lafayette Salmon's store; another remarked that "John Slick Crum has the prettiest goods." Lowe, as a witness, did not in any degree identify the goods exhibited at the trial as being part of the same goods which were brought to his home, and we see little relevancy in his testimony.

An additional circumstance adduced in the testimony as tending to prove defendant's guilt is shown by the following statements of witness Crum:

"I was coming down the road, myself and my wife and Sherman Salmons, and Sherman says, 'Lookout, Jim Bud is over there.' I come riding ahead, says, ' Come on, ' went riding down the road. I looked and seen him across the mouth of Jenny's Creek with a gun. He says, 'Hey, there.' I says, 'Who is it?' He says, ' Jim Bud Mullett.' I says, ' What do you want?' He says, 'I want them goods you came to my house and got.' I says, 'What, them you stole from me?' He says, 'Yes.' He says, 'I am going to shoot.' I says, 'Go ahead and shoot, '

This incident is supposed to have occurred some time prior to defendant's arrest, and...