State v. McGraw, No. 10679

• Court: Supreme Court of West Virginia
• Writing for the Court: HAYMOND
• Citation: 140 W.Va. 547,85 S.E.2d 849
• Parties: STATE of West Virginia, v. Joe Allen McGRAW.
• Decision Date: 01 March 1955
• Docket Number: No. 10679

Page 849

85 S.E.2d 849 140 W.Va. 547 STATE of West Virginia,
v.
Joe Allen McGRAW. No. 10679. Supreme Court of Appeals of West Virginia. Submitted Jan. 18, 1955.
Decided March 1, 1955.

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Syllabus by the Court.

1. Immaterial, unnecessary and harmless averments, which might be omitted without affecting the charge in an indictment[140 W.Va. 548] against the accused and which need not be proved, may be properly considered and rejected as surplusage.

2. When an allegation is descriptive of the identity of that which is essential to the charge in the indictment, whether it be necessary or unnecessary or more or less particular, it can not be rejected as surplusage and must be proved.

3. One of the tests prescribed to determine whether a change in an indictment by amendment is one of substance or one of mere form or surplusage is whether a judgment of conviction or acquittal on the indictment in its original form would be a bar to a prosecution on a new indictment which conforms to the original indictment after its amendment.

4. An amendment of an indictment which charges a separate and distinct offense from that charged in the indictment in its original form may not be made or permitted by a court; and such amendment, whether it relates to matters of form or matters of surplusage, invalidates the indictment and deprives the court of the power to proceed under the amended indictment.

5. A valid indictment or presentment can be made only by a grand jury; and no court can make an indictment in the first instance or alter or amend the substance of an indictment returned by a grand jury.

6. Section 10, Article 2, Chapter 62, Code, 1931, makes no provision for and has no application to an amendment which changes the name of the owner of the stolen property in an indictment for the offense of receiving stolen property and does not authorize a court to make or permit an amendment of that character.

[140 W.Va. 549] R. J. Thrift, Jr., Fayetteville, for plaintiff in error.

John G. Fox, Atty. Gen., Virginia Mae Brown, Asst. Atty. Gen., for defendant in error.

HAYMOND, Judge.

At the September Term, 1953, of the Circuit Court of Fayette County, West Virginia, the defendant Joe Allen McGraw was indicted for a felony. The indictment charged the defendant with the offense of receiving from two named persons certain articles of personal property of specified values and $23.02 in currency of the United States, which was the property of Sam Brown and which the defendant knew and

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had reasonable cause to believe had been unlawfully and feloniously stolen.

During the term of court at which the indictment was returned the defendant appeared and entered his plea of not guilty and the trial of the case was set for January 18, 1954. When the case was called for trial on that day and before the selection of a jury the State, by the prosecuting attorney, moved the court for permission to amend the indictment by changing the name of Sam Brown to the name of George L. Brown. Over the objection of the defendant the court granted the motion and permitted the amendment in the form requested by the State. To the action of the court in so amending the indictment the defendant excepted. The defendant then moved that the trial of the case be continued on the ground that he was taken by surprise by reason of the amendment. The State objected to any continuance of the trial of the case, the court overruled the motion, and the defendant excepted to the action of the court in refusing a continuance.

Over the protest of the defendant the case was tried and the jury returned this verdict: 'We, the jury, find the defendant, Joe Allen McGraw, guilty of grand larceny, as charged in the within indictment. H. C. Brown, Foreman.' The court overruled a motion of the defendant to set aside the verdict and grant him a new trial and by final judgment entered March 10, 1954, sentenced the defendant to [140 W.Va. 550] be confined in the penitentiary of this State for a period of from one year to ten years. To this judgment this Court granted this writ of error upon the petition of the defendant.

The defendant assigns as error calling for reversal of the judgment the action of the circuit court in amending the indictment by inserting the name of George L. Brown in lieu of the name of Sam Brown as the owner of the stolen property and in denying the motion of the defendant for a continuance requested by him because of the amendment of the indictment.

The State contends that the insertion by the amendment of the name of George L. Brown in lieu of the name of Sam Brown as the owner of the stolen property was a matter of mere form or surplusage which did not vitiate the indictment and that the defendant was not entitled to a continuance of the trial of the case by reason of the amendment.

Section 18, Article 3, Chapter 61, Code, 1931, deals with the crime of which the defendant was convicted. That section provides that if any person buy or receive from another person, or aid in concealing, or transfer to a person other than the owner, any stolen goods or other thing of value, which he knows or has reason to believe has been stolen, he shall be deemed guilty of larceny and may be prosecuted although the principal offender be not convicted.

The essential elements of the offense created by the foregoing statute are: (1) The property must have been previously stolen by some person other than the defendant; (2) the accused must have bought or received the property from another person or must have aided in concealing it; (3) he must have known, or had reason to believe, when he bought or received or aided in concealing the property, that it had been stolen; and (4) he must have bought or received or aided in concealing the property with a dishonest purpose. See State v. Lewis, 117 W.Va. 670, 187 S.E. 315, 187 S.E. 728, 188 S.E. 473; State v. Smith, [140 W.Va. 551] 98 W.Va. 185, 126 S.E. 703; State v. Goldstrohm, 84 W.Va. 129, 99 S.E. 248; State v. Dushman, 79 W.Va. 747, 91 S.E. 809.

The crime of larceny and the crime of buying or receiving or aiding in concealing stolen goods by a person knowing or having reason to believe that they have been stolen are separate and distinct offenses. An indictment for larceny must state the name of the owner of the stolen property or that it is the property of some unknown person or persons; but the crime of buying or receiving, or aiding in concealing, stolen property by a person knowing or having reason to believe that the property has been stolen is based upon a

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prior commission of the crime of larceny and presupposes but does not include larceny. For this reason the elements of the crime of larceny are not the elements of the crime of buying or receiving, or aiding in concealing, stolen property by a person who knows or has reason to believe that it has been stolen. See State v. Brady, 237 N.C. 675, 75 S.E.2d 791.

Under the foregoing authorities it was not necessary to set forth in the indictment in the form in which it was found and returned by the grand jury, or as amended, the name of the owner of the numerous articles of personal property and the amount of money alleged to have been stolen; and if the indictment, in either its original or its amended form, had omitted the name of the owner of the stolen property the omission of his name would have been a mere matter of form which, under Section 10, Article 2, Chapter 62, Code, 1931, would not have rendered the indictment invalid. The indictment in its original form, however, specifies numerous articles of personal property of designated values and mentions or describes them as the property of a person named Sam Brown; and the indictment, as amended, likewise specifies numerous similar articles of personal property of designated values but mentions or describes them as the property of a person named George L. Brown instead of another person named Sam...