State v. Loveless

• Decision Date: 18 June 1957
• Docket Number: No. 10859,10859
• Citation: 142 W.Va. 809,98 S.E.2d 773
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Melvin LOVELESS.

Page 773

98 S.E.2d 773

142 W.Va. 809

STATE of West Virginia v. Melvin LOVELESS.

No. 10859.

Supreme Court of Appeals of West Virginia.

Submitted May 1, 1957.

Decided June 18, 1957.

Syllabus by the Court.

1. 'In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the accused beyond a reasonable doubt, though the evidence adduced by the accused is in conflict therewith. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.' Point 1, Syllabus, State v. Bowles, 117 W.Va. 217 .

2. It is not reversible error for a trial court to deny a motion of a defendant in a criminal case for a change of venue, unless the showing in support of the motion clearly establishes that defendant can not be accorded a fair and impartial trial in the court wherein the motion is made.

3. An indictment is not void for the reason that it was returned by a grand jury at a time when a different grand jury was functioning in the same county at the time the indictment was returned.

4. In determining whether a defendant in a criminal proceeding is entitled to be discharged from further prosecution on an indictment for the reason that he has not been accorded a speedy trial, within the meaning of Code, 62-3-21, a regular term of court occurring during the pendency of a writ of error granted defendant should not be counted.

5. It is not reversible error for a trial court to require a defendant in a felony case to enter a plea to the indictment, and to cause the indictment to be read, in the presence of veniremen called for the trial, in the absence of a showing of prejudice to defendant.

6. In the trial of a felony the court may, in the exercise of a sound discretion, call as a witness a person believed to have personal knowledge of material facts, and permit cross-examination of such witness by the State and the defendant.

D. J. Savage, John L. Goshorn, Charleston, for plaintiff in error.

W. W. Barron, Atty. Gen., Giles D. H. Synder, Asst. Atty. Gen., for defendant in error. GIVEN, Judge.

Defendant, Melvin Loveless, was indicted by a grand jury of Logan County, December 8, 1955, as an accessory before the fact of the murder of Sarah Reed. Trial of defendant on the indictment resulted in a verdict of 'guilty of Accessory before the fact to Murder in the first degree', with recommendation. The Circuit Court of Logan County, on January 3d, 1956, sentenced defendant 'to the Penitentiary of this State for and during the remainder of his Natural Life'.

Two prior indictments against defendant had been returned by grand juries of Logan County, charging defendant with the same offense charged in the indictment returned in December, 1955, under which he now stands convicted. The first indictment was returned May 11, 1953, at the regular May term of court, by the regular grand jury, and the second indictment was returned on June 8, 1953, at the same term of court, by a grand jury specially called. At the time the grand jury returned the indictment in June, no order discharging the grand jury which returned the indictment in May had been entered. In so far as the record speaks, therefore, the two grand juries were functioning at the same time. Defendant was tried twice, twice found guilty, and twice sentenced to death, on the indictment returned in June. The judgments sentencing defendant were set aside by this Court. The first trial was had at the term of court at which defendant was first indicted. The second trial was had at the first regular term of court held in Logan County subsequent to the setting aside of the first verdict. Three regular terms of court were not held in Logan County between the time this Court set aside the verdict returned at the second trial and the time the verdict involved on this writ of error was returned. The opinions of this Court in the cases wherein the two verdicts were set aside are reported in State v. Loveless, 140 W.Va. 875, 87 S.E.2d 273; State v. Loveless, 139 W.Va. 454, 80 S.E.2d 442. The facts of the homicide, and the evidence of defendant's supposed connection therewith, are carefully and fully set out in those opinions. However, since the testimony in the instant case relating to defendant's guilt was not the same as the testimony given at the prior trials, and since in the instant case a question is raised as to the sufficiency of the evidence to support the verdict returned, we must here attempt to detail the evidence tending to establish guilt of defendant as charged in the indictment of December, 1955.

The murder of Sarah Reed occurred at Logan, on Wednesday, April 29, 1953, at about two thirty o'clock in the morning, in rooms occupied by Nelson Beatty, on the second floor of an apartment building, during a burglary of the rooms, by James Rufus Jones, Eugene Sherman, Charles Edward Ford and Albert K. Puckett. Sarah Reed, an employee of Beatty, was the only person in the rooms when broken into by those who committed the burglary. She died from the effects of a bullet fired from a gun by one of the persons who committed the burglary. Jones and Ford were jointly tried on a murder charge, convicted and sentenced to the penitentiary for life. Puckett and Sherman entered pleas of guilty to a charge of murder, and received like sentences.

On the day before the homicide, Loveless and others implicated in the burglary, sometimes herein referred to as defendants, were is and about the Loveless Hotel in Charleston, a hotel operated by the defendant Loveless. The automobile of Loveless was parked near the hotel a large part of the day, and the hotel and the automobile were undoubtedly used during a part of the day as general meeting places for at least some of the persons who were planning, and who later committed, the burglary. There appears no question that Loveless was in and about the hotel on that day, and in and out of the automobile a number of times, in conversation with other defendants. During the day, April 28, 1953, one of defendants, Puckett, called Loveless from Roanoke, Virginia, about twelve o'clock noon, and asked Loveless: 'Are you going to get that bread tonight?'; and Loveless replied, 'I haven't heard from the other people * * *. Call me later and I will let you know'. It was explained that 'bread' was intended to refer to the money expected to be obtained by the burglary. A later call was made from Martinsville, Virginia, and Loveless directed Puckett and Williams, another person involved, to 'come to Charleston', which they did. Both Puckett and Williams were nonresidents of West Virginia and were unfamiliar with the streets of Charleston, Puckett never previously having been in Charleston. On arriving at Charleston, 'between ten and ten-thirty' in the evening, they parked their automobile, a 1952 Ford equipped with a Cadillac motor, at a service station, and went directly by taxicab to the Loveless Hotel. When Puckett 'got out of the cab' at the Loveless Hotel, he 'saw Melvin get out of the automobile'. Loveless then provided food for Puckett and Williams, after which, in a very short time, Loveless, in his own automobile, drove the four defendants who committed the burglary to the service station where Puckett and Williams had left their automobile. At that point, some of defendants got into the Puckett-Williams automobile and continued their journey to the point where the burglary was committed. No witness testified that Loveless actually drove his own automobile to Logan on that evening, but it is not questioned that the defendants who rode to the service station with Loveless were at the scene of the crime when it was committed. After the homicide, 'everybody involved' met in a room in the Loveless Hotel, where the money obtained in the burglary, about six hundred dollars, was divided, Loveless receiving part thereof.

On the Sunday before the Wednesday of the homicide Loveless went to the home of the mother of Eugene Sherman, one of defendants, and inquired for Sherman. Later, Barbara Harris, an employee at the Loveless Hotel, at the instance of Loveless, made another such inquiry. Being informed of the inquiries, Sherman went to the Loveless Hotel, where he found Loveless. Loveless then, in his own automobile, with Eugene Sherman, drove to the Ferguson Hotel, located in Charleston, for the purpose of contacting the defendant Ford, and the three then drove to Logan in the automobile of Loveless. They visited the Elk's Club at Logan, which was near the apartment wherein the rooms occupied by Beatty, the place where the homicide occurred, were situated. While at the club, Loveless asked an employee, 'Where was Mr. Beatty?' Ford and Sherman inquired of a lady at a restaurant near the Elk's Club 'where Beatty's apartment was at, and she showed us, right down below the Elk's Club there'. Under a pretense of using a toilet, Ford and Eugene Sherman 'went up stairs * * * to look it over', and were ordered out of the apartment building. The numbers of the Beatty rooms previously had been furnished to Ford and Sherman. The three, after Ford and Sherman were ordered out of the building, immediately left Logan and returned to Charleston.

There is other evidence which indicates that Loveless and some of the other persons involved in the burglary had, for some time, contemplated such a burglary as that committed at the Beatty rooms, at some point between Keystone and Charleston, where they 'would have to go in and take the money'; that Loveless indicated they would probably obtain 'between forty and fifty thousand dollars'; and that the place at which the burglary was contemplated was that of Nelson Beatty. We think, however, that the evidence detailed above entirely justified the verdict...