State v. Lewis
| Citation | 77 S.E.2d 606,138 W.Va. 743 |
| Decision Date | 29 September 1953 |
| Docket Number | No. 10576,10576 |
| Parties | STATE, v. LEWIS. |
| Court | Supreme Court of West Virginia |
SYLLABUS BY THE COURT.
An indictment for the offense of grand larceny substantially in the form prescribed by Code, 62-9-10, which charges that 'on the ___ day of _____, 1953,' the defendant 'feloniously did steal, and carry away,' the goods, effects and property of a named owner of the value of $75, sufficiently charges that the crime charged in the indictment was committed prior to the finding and return of the indictment.
John G. Fox, Atty. Gen., Arden J. Curry, Asst. Atty. Gen., for plaintiff in error.
No appearance for defendant in error.
In this criminal proceeding of State of West Virginia against Hubert Lewis, the State of West Virginia prosecutes this writ of error to a judgment of the Circuit Court of Pocahontas County, which sustained defendant's motion to quash the indictment and ordered that the indictment be quashed and dismissed, and that the defendant be released from custody, to go without day.
On March 10, 1953, the Grand Jury of Pocahontas County indicted the defendant for the larceny of a certain tweed overcoat of the value of seventy-five dollars. The indictment read:
'The Grand Jurors of the State of West Virginia, in and for the body of the County of Pocahontas, and now attending said court, upon their oaths present that Hubert Lewis on the ..... day of .........., 1953, in the said County of Pocahontas, one tweed overcoat of the value of $75,00, of the goods, effects and property of Robert Johnson, feloniously did steal, and carry away, against the peace and dignity of the State.
'Found upon the testimony of Stanley Wooddell, and others, duly sworn in open court to testify the truth, and sent before the Grand Jury, this 10th day of March, 1953.
'(Signed) George S. Sharp,
'Prosecuting Attorney.'
Upon being arraigned the defendant entered a plea of not guilty, and thereafter, on March 18, 1953, the defendant, by his counsel, moved the trial court for permission to withdraw the plea of not guilty, entered on the former day, which motion was granted. Defendant then moved the court to quash and dismiss the indictment on the ground that the indictment did not show on its face that the larceny complained of was committed before the finding and return of the indictment of the grand jury.
The State of West Virginia assigns as its only ground of error that the circuit court erred in quashing and dismissing the indictment upon the ground that the indictment did not on its face show that the larceny therein charged was committed before the date on which the grand jury found and returned the indictment.
Code, 62-2-10, the statute controlling the decision in this case, contains the following pertinent provision: 'No indictment or other accusation shall be quashed or deemed invalid * * * for omitting to state, or stating imperfectly, the time at which the offense was committed, when time is not of the essence of the offense; * * *.'
The indictment is substantially in the form prescribed by Code, 62-9-10. As the value of the property alleged to have been feloniously taken by the defendant is stated in the indictment to be seventy-five dollars, that is, the value of twenty dollars or more, the indictment effectively charges the defendant with the crime of grand larceny. Code, 61-3-13. As Section 13 further provides that a person convicted of grand larceny shall be confined in the penitentiary not less than one, nor more than ten years, the offense of grand larceny is a felony under the provisions of Code, 61-11-1, as amended and reenacted by Section 1, Article 11, Chapter 61, Acts of the Legislature, Regular Session, 1947, which provides that: 'Such offenses as are punishable with death or confinement in the penitentiary are felonies; all other offenses are misdemeanors.'
As the statute prescribing and covering the crime of larceny (Code, 61-3-13), has not been amended since 1923, the crime of grand larceny was a felony during all of the year 1953, and the penalty therefor remained unchanged. So, 'time is not of the essence of the offense' charged in the instant indictment, and the provisions of Code, 61-11-9, providing limitations for criminal prosecutions do...
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...* * *'. 27 Am.Jur., Indictments and Informations, Section 70. See 42 C.J.S. Indictments and Informations § 123. In State v. Lewis, 138 W.Va. 743, 77 S.E.2d 606, 607, the indictment charging the defendant with having committed grand larceny 'on the ___ day of _____, 1953', was held sufficien......
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...477, 72 S.E.2d 617, 620 (1952). An indictment for larceny that follows the language of Code, 62-9-10, is sufficient. State v. Lewis, 138 W.Va. 743, 77 S.E.2d 606 (1953). Code, 62-9-10 does not require an indictment to allege the specific place of An indictment for larceny shall be sufficien......
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...that this claim by the defendant is without merit. See State v. Chaffin, 156 W.Va. 264, 192 S.E.2d 728 (1972); State v. Lewis, 138 W.Va. 743, 77 S.E.2d 606 (1953); State v. Pennington, 41 W.Va. 599, 23 S.E. 918 (1896); and Tincher v. Boles, 364 F.2d 497 (4th Cir.1966).Lastly, the defendant ......
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State ex rel. State v. Reed
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