State v. Kapp, 6725.

• Citation: 155 S.E. 537
• Decision Date: 14 October 1930
• Docket Number: No. 6725.,6725.
• Court: Supreme Court of West Virginia
• Parties: STATE. v. KAPP.

155 S.E. 537

STATE.
v.
KAPP.

No. 6725.

Supreme Court of Appeals of West Virginia.

Oct. 14, 1930.

[155 S.E. 537]

Error to Circuit Court, Kanawha County.

Homer Kapp was convicted of larceny, and he brings error.

Reversed, verdict set aside, and new trial granted.

Orvllle Hackney, Hillis Townsend and M. F. Matheny, all of Charleston, for plaintiff in error.

Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

WOODS, J.

Homer Kapp, who was convicted of the larceny of a pocketbook containing $35 in bills and several notes, and sentenced to confinement in the penitentiary for a term of two years, brings error.

M. D. Piercy and the defendant, as partners, were operating the Commercial Hotel in the city of Charleston. The former came to the hotel at 6 o'clock on the evening of the alleged larceny, and at 7 o'clock he, together with defendant and the latter's wife, went into the dining room. He states that at that time there was no one in the lobby, and that defendant did not eat, but returned to the lobby. Two hours later Piercy returned to the lobby, and, upon taking his coat from the rack, where he had previously placed it, discovered that his pocketbook was missing. He accused no one at the time of having taken it. Jones, the other witness for the state, testified that while passing the hotel about 7:30 o'clock that evening, he saw Kapp, who, at that time was the only person in the room, reach up and take something from a coat; that there seemed to be more than one coat on the rack; that the object removed was long, but he could not say that it was a pocketbook; and that defendant then went through the hall like he started up the steps. There is some testimony to the effect that there were others lounging in the lobby during Piercy's absence therefrom, and that none of them saw Kapp remove a pocketbook from Piercy's coat.

Is the verdict sustained by the evidence? Was the jury warranted in finding beyond all reasonable doubt that defendant took the prosecuting witness' pocketbook? While opportunity to commit the larceny is a potent circumstance to be considered with other incriminating facts, mere proof of it is not sufficient to establish accused's guilt. 36 C. J. 917. And especially is this true where the opportunity does not appear to have been exclusive, as here. The lobby was necessarily open to the public. The prosecuting witness does not attempt to say how long defendant remained in the dining room before leaving; nor does he state...