State v. Loveless

• Decision Date: 09 March 1954
• Docket Number: No. 10617,10617
• Citation: 139 W.Va. 454,80 S.E.2d 442
• Court: West Virginia Supreme Court
• Parties: STATE, v. LOVELESS.

Page 442

80 S.E.2d 442

139 W.Va. 454

STATE, v. LOVELESS.

No. 10617.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 19, 1954.

Decided March 9, 1954.

Syllabus by the Court

1. The refusal to grant a continuance, being within the sound discretion of the trial court, does not constitute reversible error unless it affirmatively appears that the party seeking it was injured thereby.

2. Where the evidence in the trial of an accessory before the fact shows beyond a reasonable doubt that deceased was killed by a shot fired by one of several principals, all of whom were present, and more than one of whom was firing shots, it is unnecessary to prove which particular principal actually fired the fatal shot.

3. In a case in which the jury may return a verdict of guilty of murder in the first degree, it is the mandatory duty of the trial court, without request, to instruct the jury that, in the event such a verdict is returned, they may further find that the accused be punished by confinement in the penitentiary and that, in the absence of such finding, a sentence of death must be pronounced by the court.

Capehart, Miller & Capehart, Welch, for plaintiff in error.

John G. Fox, Atty. Gen., Robert E. Magnuson, Asst. Atty. Gen., for defendant in error.

BROWNING, Judge.

Melvin Loveless was indicted at the May, 1953 Term of the Circuit Court of Logan County on two counts: Murder, and accessory before the fact of murder. Subsequently, on June 8, 1953, at the same term, a special grand jury met and indicted Loveless as an accessory before the fact of murder. The case was set for trial on June 15, 1953, upon a plea of not guilty, and on that day a written motion for a continuance was filed, assigning as grounds: (1) The hostile attitude of the court at that time due to the fact that at a previous trial of another involved in the murder, a witness, Beatty, in whose home the offense was committed, assaulted one of the attorneys for the defense; (2) that said Beatty would be a witness at the trial and should have time to cool off; (3) that newspaper articles had been highly prejudicial to Loveless; (4) that trial was set for one week after the return of the June 8 indictment, which did not allow a reasonable time in which to secure the presence of witnesses; and (5) counsel had had no opportunity to consult or talk to the persons theretofore tried or who had pleaded guilty to the same offense. The motion then set out that there had been no other continuance on behalf of Loveless, and recited several newspaper articles which were alleged to be highly prejudicial and inflammatory.

The motion for a continuance was overruled, the case proceeded to trial, and a verdict of guilty, without recommendation, was returned by the jury. Judgment was entered on the verdict, sentencing the defendant to be executed, to which this Court granted a writ of error and supersedeas on September 1, 1953.

Numerous errors have been assigned as grounds for reversal, but in the briefs and argument, counsel have apparently abandoned all except the following: (1) The court erred in overruling defendant's motion to quash the indictment; (2) the court erred in overruling defendant's motion for a continuance; (3) the court erred in giving to the jury State's Instruction No. 2; (4) there is a fatal variance between the indictment and the evidence introduced by the State; (5) the verdict of the jury required the imposition of a heavier penalty upon the defendant as an accessory before the fact than was imposed upon the principals; and (6) the court erred in not properly instructing the jury as to the effect of its verdict should it find the defendant guilty of murder in the first degree.

The defendant relies upon the court's charge to the grand jury as reported in the press to sustain the first assignment, but this record does not disclose that such a motion was made to the trial court, nor was the point assigned as error in the motion for a new trial. The question can not be raised for the first time in this Court, inasmuch as an accused waives secondary defects in an indictment when neither demurrer nor motion to quash is interposed. However, he does not thereby waive primary defects therein, that is, he does not waive the objection that the facts stated do not constitute an offense, but that point is not urged by counsel, and an examination of the indictment in this case shows that it clearly meets the requirements of the Constitution that the defendant be advised therein of the character and nature of the accusation against him.

On the morning of defendant's trial, his counsel submitted to the court a written motion for a continuance. A discussion of this motion and assignment of error as to the court's ruling thereon requires a more detailed recitation of the facts. The crime for which the defendant was convicted was committed on the morning of April 29, 1953, and at the regular term of the Logan County Circuit Court, which convened on May 12, 1953, Albert K. Puckett, Douglas Eugene Sherman, James R. Jones and Charles Edward Ford were indicted as principals, and the defendant was indicted both as principal and accessory before the fact to the murder. A sixth man, Davis Jefferson Williams, apparently also was indicted by the regular grand jury, but whether as a principal or an accessory is not clear from this record, he having been committed to an institution, and has not yet been arraigned. On the 15th day of May, trials were set for those indicted for the Reed murder, the date of defendant's trial being fixed for May 28, subsequent to all the others. Thereafter, and prior to the 28th, Jones and Ford were tried jointly by a jury and convicted of murder in the first degree with a recommendation of imprisonment, and Puckett and Sherman subsequently pleaded guilty to murder in the first degree, and all four were sentenced to a term of life in the penitentiary. In view of alleged contradictory statements made by the four men, whose cases had already been disposed of, the prosecuting attorney requested the court to convene a special grand jury for the purpose of re-indicting Loveless. Such a special grand jury was called for June 8, 1953, and an indictment was returned against the defendant similar to the previous one, but different in that an additional person was named as being a principal in the murder. The written motion recites, in support of the defendant's contention that a hostile atmosphere existed against him, an altercation that occurred at the trial of two of the defendant's alleged accomplices during the same term of court between Nelson Beatty, in whose apartment the murder took place, and Ira P. Hager, an attorney of Logan, and of defense counsel in that case. The motion states that Hager was assaulted by Beatty during the trial, and that when Hager rushed into the courtroom to report the altercation that there was a stampede of spectators in the courtroom, and officers were required to draw their revolvers to restore order. The principal reliance for a continuance, however, is based upon several newspaper articles which had appeared in the Logan Banner, a daily newspaper with general circulation in Logan County; The Charleston Gazette, likewise a daily newspaper with a large circulation in that county; and the Bluefield Daily Telegraph, which it was alleged had a small circulation in certain sections of the county. Shortly before the date of defendant's trial, an article of May 28 in the Logan Banner gave considerable details of the opening of the trial on that day of Ford and Jones. Reference is made to the fact that 'four other men implicated in the holdup-murder will follow today's trial. They are Melvin Loveless, Charleston numbers operator, who is reported to be the instigator of the crime, * * *.' The article related in some detail the opening statement to the jury by the prosecuting attorney in which the defendant Loveless was depicted as the leader of the group of men charged with the offense. Mr. D. Boone Dawson, also of counsel for the defense in that case, qas quoted as telling the jury that: '* * * Loveless had been planning the robbery for sometime and that he was familiar with Beatty's habits. He added that Loveless contacted Puckett and Williams in Martinsville, Virginia, and then asked Ford and Jones to join in the proposed robbery. He said the two young men on trial today got into the thing before they knew what they were getting into and that when things turned out as they did there was nothing for them to do but to tell the truth.'

An article from the Charleston Gazette of June 9, under an associated press heading, referring to the re-indictment of the defendant, said: '* * * Six men, including Loveless, were rounded up within a few days of the slaying. Codefendants of Loveless, identified by Mayor John T. Copenhaver of Charleston as a numbers racketeer, said he organized the robbery in the belief that Beatty had $45,000 in the apartment. * * *'

An article from the Logan Banner, under date of June 8, and under a headline which stated: 'Special Grand Jury Convenes Murder Indictment Is Sought By State.', quoted excerpts from the judge's charge to the jury:

"Some have been tried,' the judge said, referring to five other men who were indicted by the regular session of the grand jury in connection with the Reed case, 'and some have pleaded.'

"It is imperative that these cases be completed this term of court.' Judge Chambers added. 'I have called this special grand jury in order to offer the man a speedy trial. I believe that a man should have a trial as soon as possible."

The article further states that the judge told the jurors that if the prosecuting attorney had other cases to present they should consider them and remain in session as long as it was necessary to complete the work that was to be done. An article of similar import was quoted from the Bluefield Daily Telegraph.

The prosecuting...