State v. Littleton

• Decision Date: 21 March 1916
• Citation: 88 S.E. 458,77 W.Va. 804
• Parties: STATE v. LITTLETON.
• Court: West Virginia Supreme Court

88 S.E. 458

77 W.Va. 804

STATE v. LITTLETON.

Supreme Court of Appeals of West Virginia.

March 21, 1916

Submitted March 14, 1916.

Syllabus by the Court.

Where a count in an indictment properly alleges both housebreaking and larceny, there may be a conviction of either, but not of both; on a general verdict of guilty on such count, the judgment should be for housebreaking, and not for larceny.

The possession of stolen goods is not of itself even prima facie evidence that the person in whose possession the stolen goods are found is the thief, or that he is guilty of breaking and entering the house from which the goods were stolen; but the exclusive possession and control of property recently stolen are circumstances tending to show that the person found in possession is the thief, and the jury may consider them in connection with all the other circumstances and facts in proof.

Though the mere possession of property recently stolen from the house which has been entered is not even prima facie evidence of the housebreaking charged in the indictment, yet, in connection with other evidence of such offense, evidence of the exclusive possession of the stolen property is admissible.

Whether a party shall be permitted to introduce further evidence after the case has been closed and submitted to the jury, and before the jury returns a verdict, is a matter of sound discretion of the trial court, and its exercise of this discretionary power will not be cause for reversal except in case of the abuse of the discretion, and that it plainly appears that the person making the request has been injured by the refusal.

Error to Circuit Court, Marshall County.

Grover Littleton was convicted under an indictment charging housebreaking and larceny, and brings error. Reversed, and new trial awarded.

Everett F. Moore, of Moundsville, for plaintiff in error.

A. A Lilly, Atty. Gen., John B. Morrison and J. E. Brown, Asst Attys. Gen., for the State.

MASON J.

At the May term, 1915, of the circuit court of Marshall county Grover Littleton was indicted, charged with having broken and entered the storeroom of M. B. Fisher, in Moundsville, in said county, on the ______ day of February, 1915, with the intent to steal the goods and chattels of said Fisher then in said building, and that he did steal certain goods, amounting in the aggregate to $6.20. The defendant was arrested, and moved to quash the indictment, which motion was overruled. He then pleaded not guilty. At the same term of court he was tried, convicted and sentenced to five years' imprisonment in the penitentiary of the state. The defendant moved to arrest the judgment, and to set aside the verdict and grant him a new trial. These motions were overruled, and excepted to. The defendant insists that the evidence was not sufficient.

Fisher's store was entered in the nighttime, on the ______ day of February, 1915, and some bacon, gingham, calico, tobacco, and lima beans taken. On the 19th day of April the defendant was arrested. He and his wife and his brother-in-law, William Medline, and the latter's wife were at that time living in a three-room house in Moundsville. Medline and his wife occupied one room and the kitchen; the defendant and his wife occupied the other. The officers searched the house, and found some tobacco, beans, calico, and gingham. The calico and gingham were found in a dresser in the room occupied by Medline and his wife, and the beans were found in the kitchen occupied by Medline. Witness says he believes he found the tobacco in the dresser, but is not certain. Mr. Fisher identified the goods in a general way, says he lost goods like them, but would not say they were his. There does not seem to have been any way to identify them or to distinguish them from other goods of the same kind. There is no evidence that the defendant had them in his possession, nor were there proven any suspicious facts or circumstances against him. The only thing connecting him in any way with the offense is that some of the goods were found in a room occupied by others and in the same building in which he lived.

The defendant also complains of two instructions given to the jury at the instance of the State, as follows:

"No. 1. The court instructs the jury that the possession of property proven to have been recently stolen is evidence from which the jury may infer that the person in whose possession such property is found is guilty of the theft, provided that such possession is not explained; and if you believe from the evidence in this case beyond all reasonable doubt that the defendant did break and enter the storeroom alleged in the indictment in this case to have been broken and entered and did then and there steal, take and carry away the goods, and property in said indictment alleged to have been stolen, taken and carried away, you will find the defendant guilty.

No. 2. The court instructs the jury that the possession of property proven to have been recently stolen is evidence from which the jury may infer that the person in whose possession, or constructive possession, such property is found is guilty of the theft, provided that such possession is not explained; and, if the jury believe from the evidence in this case that the said storeroom was broken and entered as alleged in the indictment in this case, and the goods described in said indictment taken, stolen, and carried away, as alleged therein, and that the said goods were thereafter found in the possession, or constructive possession, of said defendant, or any considerable part of said goods, and that such possession is not explained in a manner consistent with the innocence of the defendant, that fact is one that the jury may consider in determining the guilt or innocence of the accused."

Both of these instructions are bad. The indictment charges the breaking and entering into the storehouse with intent to steal. It also charges that the larceny was actually committed. Upon such count there may be a conviction for either offense, but not for both. Upon a general verdict of guilty on such count, the sentence would be for housebreaking. Where there is a general verdict, the larceny is merged in the burglary or housebreaking. State v....