State v. Johnson
| Decision Date | 26 January 1932 |
| Docket Number | 7089. |
| Citation | 164 S.E. 31,111 W.Va. 653 |
| Parties | STATE v. JOHNSON. |
| Court | West Virginia Supreme Court |
Submitted January 19, 1932.
Rehearing Denied May 23, 1932.
Syllabus by the Court.
Count in indictment, though part charging larceny is not drawn with sufficient precision, held to sufficiently charge offense of feloniously breaking and entering building other than dwelling (Code 1923, c. 145, § 13).
Variance between indictment and proof, to be fatal, must be both material and prejudicial (Code 1923, c. 159, § 23).
Good count, in indictment containing several counts relating to one and same transaction, will support general conviction.
In prosecution for breaking and entering building with intent to commit larceny, testimony of finger print expert giving opinion based upon comparison of photographs of finger prints held admissible.
Qualification of finger print expert rests largely in discretion of trial court.
Weight of testimony given by finger print expert is question for jury.
Accused having voluntarily permitted impression of finger to be made cannot object to introduction of photographs on ground such introduction contravenes constitutional privilege not to be witness against himself (Const. art. 3, § 5).
Motion for new trial for misconduct of jury is addressed to sound discretion of trial court.
Denial of new trial on ground of misconduct of jury will not be disturbed on appeal where it appears defendant was not prejudiced.
Whether juror was subjected to improper influence affecting verdict warranting new trial, is fact primarily to be determined by trial judge from circumstances of particular case.
Proof of alleged misconduct of jury, warranting new trial, must be clear and convincing; proof of mere opportunity to influence jury being insufficient.
In prosecution for feloniously breaking and entering building other than dwelling, alleged misconduct of jurors, in listening to radio installed in jury room where they were kept in custody overnight, held not to warrant new trial (Code 1923, c. 145, § 13).
1. A count in an indictment charging the felonious breaking and entering into a theater, not a dwelling nor an outhouse adjoining thereto, with intent to steal goods therein, and actual larceny thereof, although that part charging larceny is not drawn with sufficient precision to support a conviction of larceny, is not for that reason bad under section 13, chapter 145, Code 1923. As the breaking and entering are charged to have been done with intent to commit larceny, a charge of actual larceny is not necessary and may be rejected as surplusage.
2. One good count in an indictment containing several counts relating to one and the same transaction will support a general conviction. The same rule applies whether there was a general demurrer to the indictment, or a demurrer to each separate count thereof.
3. To make a variance between allegations in an indictment and the proof fata l, it must be both material and prejudicial.
4. A person experienced in the matter of finger print identification may give his opinion as to whether the finger prints found at the scene of the crime correspond with those of the accused, basing his conclusion upon a comparison of photographs of such prints with impressions made by the accused; there being no question as to the accuracy or authenticity of the photographs.
5. The question of the qualification of such witness as an expert rests largely in the discretion of the court, there being no arbitrary and fixed test of such qualification. The weight of such testimony is a question for the jury.
6. Where an accused, so far as evidence discloses in this case voluntarily permits an impression of his finger to be made, he may not object to the introduction of a photograph thereof, on the ground that the same contravenes his constitutional privilege not to be a witness against himself.
7. A motion for a new trial on the ground of the misconduct of a jury is addressed to the sound discretion of the court, which as a rule will not be disturbed on appeal where it appears that defendant was not injured by the misconduct or influence complained of. The question as to whether or not a juror has been subjected to improper influence affecting the verdict is a fact primarily to be determined by the trial judge from the circumstances, which must be clear and convincing to require a new trial; proof of mere opportunity to influence the jury being insufficient.
Error to Circuit Court, Cabell County.
L. E. Johnson was convicted of feloniously breaking and entering a building other than a dwelling, and of larceny. From an order of the circuit court refusing a writ or error to the judgment of the court of common pleas, defendant brings error.
Judgment affirmed.
L. R. Via and W. T. Lovins, both of Huntington, for plaintiff in error.
Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.
L. E Johnson prosecutes error from an order of the circuit court of Cabell county refusing a writ of error to a judgment, entered by the court of common pleas of said county, sentencing him to two years' confinement in the penitentiary.
Defendant was tried on the first and third counts of the indictment, the second count having been quashed by a former order. The first count charged him with feloniously breaking and entering a certain building belonging to John Walters and Mrs. John Walters, and used as a theater building, said building not then and there being a dwelling house or outhouse adjoining thereto or occupied therewith, and of stealing and carrying away one lot of motion picture machinery and equipment of the value of $1,000, the goods, chattels, and property of the said John Walters and Mrs. John Walters. The third charged the larceny of "one lot of motion picture machinery and equipment" belonging to the parties aforesaid.
Did the trial court err in overruling the demurrer to the first and third counts? While defendant's contention that the description of the property alleged to have been removed was insufficient might be well taken, we are of opinion that the first count is good in any event, under section 13, chapter 145, Code 1923, for feloniously breaking and entering a building other than a dwelling. State v. Cooper, 111 W.Va. --, 161 S.E. 30; State v. Mullett, 94 W.Va. 680, 120 S.E. 75; State v. McClung, 35 W.Va. 280, 13 S.E. 654. As pointed out in the Cooper and McClung Cases, the allegation in said count of actual larceny not being necessary, but merely in aid of intent, need not be made with the same formality as a count for larceny itself.
Defendant seeks to avoid the conviction by claiming a variance, pointing out that, while the first count alleges the ownership of the building to be in Walters and wife, the proof shows that it was owned in fact by one Edwards. The evidence, however, reveals the fact that the theater was under lease to Walters and wife. This is sufficient under our case of State v. Williams, 40 W.Va. 268, 21 S.E. 721. In that case the court instructed the jury that it would be sufficient if the house mentioned in the indictment was in the actual or constructive possession of persons named therein. But it is not necessary to go to this extent in the instant case, for what was claimed to be a variance was not taken advantage of before verdict by motion to exclude, nor objected to when offered, and no motion thereafter made to strike it out. State v. Rodgers, 80 W.Va. 680, 93 S.E. 757. The established rule in the Virginias is that the objection must be made in one of the above ways before verdict.
It is further urged that while the indictment is for feloniously breaking and entering a building--used as a theater building--not a dwelling house or an outhouse adjoining thereto, the proof shows that there were people living in that building as a residence, thus changing the entire character of the building from that named in the first count of the indictment. This motion of variance was seasonably made.
As already stated, count 1 of the indictment is based solely on section 13, chapter 145, Code 1923. The proof puts it plainly within such section. While there is a statement, on cross-examination, that some one occupies a portion of the building over the theater as a dwelling, there is nothing to show a physical connection with, or right of access to, the theater which is charged to have been broken into. The building--that portion at least which was under lease as a theater--has been so specifically described that the defendant is protected from a second prosecution for the same offense, should some one attempt to have him indicted for breaking and entering a dwelling for the same offense.
It is the well-established general rule that to make a variance between allegations in an indictment or information and the proof fatal, it must be material and prejudicial. 14 R. C. L. 206. The error, if it can be classed as an error, was in favor of the defendant, since he was arraigned for a less offense, and of such a nature as to bar further arraignment for the greater offense. May the defendant be allowed to urge such ground? We think not.
Was the first count sustained by the general verdict of guilty? The rule is stated in 14 R. C. L. 211: "If two counts in an indictment or information relate to one and the same transaction, general verdict is sufficient, and may be applied to either count, so that upon an indictment containing several counts, some of which are good and others faulty, such a verdict will be referred to the good counts and sustained unless the contrary appears." The above text is supported by Powers v. United States, 223 U.S. 303, 32 S.Ct. 281, 56 L.Ed. 448; State v....
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