State v. Morris
| Decision Date | 22 April 1924 |
| Citation | 96 W.Va. 291 |
| Parties | State v. Pitt Morris and Tip Johnson. |
| Court | West Virginia Supreme Court |
Where the indictment charges the accused of robbing the prosecuting witness of a revolver, beir.g armed with a deadly weapon, and the evidence and circumstances disclose that the accused, a special constable on his way to execute criminal process, accompanied by a companion for that purpose, upon reaching the home of the latter, found the prosecuting witness there with bottles of intoxicating liquor in his pocket and partially exposed to view, and after a short colloquy took him. from his horse by force assisted by his companion, having in their possession and ready for use their pistols; disarmed him of the revolver mentioned in the indictment, and took from him his liquor; and the pistol so taken is delivered, a day or so after, to a justice of the peace by a prohibition officer who happening on the scene of the alleged robbery assisted in disarming the prosecuting witness and the confiscation of his liquor; the essential element of the intent to steal, take and carry away the revolver on the part of the accused at the time they came into possession of the revolver, is not clearly shown and the taking under such circumstances does not warrant a conviction of robbery. (p. 298).
bery.
To constitute the crime of robbery in this case the intent to steal, take and carry away the pistol must have existed in the minds of the accused at the time the prosecuting witness was disarmed; any subsequent appropriation or carrying away of the pistol, although illegal, does not make it robbery. (p. 298).
dence Held Error, Although Objections Thereto Sustained and Jury Admonished to Disregard.
The prosecution in the trial of such case commits error when it attacks the character of the accused as a law abiding citizen, (the same not being at issue), by a series of questions persistently propounded to him on cross examination asking if he has not been charged with, convicted of, and served sentence for various Infractions of the law in no way pertinent to the issue, although objections to the questions and answers are sustained by the court and the jury cautioned not to consider them. The persistent effort to introduce improper and prejudicial evidence, in spite of the rulings by the court of its illegality, can only be for the purpose of prejudicing the jury, and is not wholly cuned by instructions to disregard it. (p. 301).
Error to Circuit Court, Clay County.
Pitt Morris and Tip Johnson were convicted of robbery, and they bring error.
Reversed; verdict set aside; new trial awarded.
A. M. Belcher and Roy K. Morris, for plaintiffs in error. E. T. England, Attorney General, and R. A. Blessing, Assistant Attorney General, for the State.
The indictment charges that Pitt Morris, Tip Johnson, Grant Cochrane and 0. D. Dillard, being armed with revolvers, feloniously did make an assault upon and put in bodily fear one Cal Vance and "one check payable to the order of O. D. Dillard, given on the Bank of Gauley, Gauley Bridge, West Virginia, in the sum of seventy-five dollars and of the value of seventy-five dollars, and one revolver of the value of twenty dollars, the property of the said Cal Vance, from the person and against the will of the said Cal Vance, then and there, to-wit, on the day and year aforesaid, in the county and state aforesaid, feloniously and violently did steal, take and carry away," etc.
Defendants Morris and Johnson were tried together and found guilty as charged. Dillard was dead at the time of the trial; Cochrane does not appear to have been apprehended. Morris and Johnson obtained a writ of error.
The main ground relied on for reversal is that the verdict is contrary to the law and the evidence. A number of other questions incidentally arise, but they are all covered by this one assignment of error. (Some errors were committed in the course of the trial in allowing certain evidence to go to the jury, but no objection was made or exception taken; these will be pointed out in order to prevent error upon a new trial).
It appears from the testimony that defendant Morris, in January, 1921, was appointed a special constable by Justice C. E. Jarrett of Kanawha county, to execute a warrant for the arrest of Kester Auxier, charged with operating a moonshine still, and was by the justice in that case authorized to carry a revolver. He did not know just where Auxier lived, but it was somewhere on Rock Camp, and supposed by Morris to be in Kanawha county. Johnson lived in Clay county, near the Kanawha-Clay county line, but supposed by Morris to be in Kanawha County. According to arrangements made between them, Morris went up to Gauley Bridge on January 13th, changed cars there and went further on to Bend Tree, where he was met by Johnson, who was to go with him over to Johnson's bouse, evidently a considerable distance, but not stated in the evidence, and direct Morris from there where or how to find Auxier. They got over to Johnson's house around three o'clock in the afternoon. As they approached the house they saw two men who turned out to be Cal Vance and Russel Dorsey. In or about the house were 0. D. Dillard, a state prohibition officer, Grant Cochrane, Johnson's wife and thirteen year old daughter, and Johnson's father. The prosecuting witness, Cal Vance, testified that he lived at Vaughn, Nicholas county, and was a constable of that county; that on January 13, 1921, he was over near Johnson's house to obtain some information about the school house located there, for use in an approaching trial between the "auditor" and the board of education, probably of Pleasant District. How he met the two defendants or what took place when they met he does not say, but abruptly states: '' They just pulled me off my horse back pulled and jerked my check book out of my pocket jerked my gun out from my holster and took that and punched me along with the guns until they got me in the house." Dorsey lived about five miles from Johnson and was on his way to serve process in a civil suit on one Auxier who lived in the neighborhood, and was accompanied by Vance for the purpose above stated. They had stopped at Johnson's house on the suggestion of Vance to inquire the way to Auxier's place of abode, and had been there several minutes before the arrival of Morris and Johnson. From the time of the arrival of the latter the evidence is in sharp conflict. Vance and Dorsey say that they were kept virtual prisoners in and about the Johnson house for two hours or more by Johnson, Morris, Cochrane, Dillard, Johnson's wife and daughter then thirteen years old. No mention is made of Johnson's father, except that he was there. They say they were intimidated by all of them; that each one of them had one or more pistols which they exhibited, and all wore officers badges and pretended to be officers including Mrs. Johnson. Evidence went in without objection that the accused confiscated, robbed or took the holster in which Vance carried his revolver, and also the pistol carried by Dorsey, although these articles are not mentioned in the indictment. Who appropriated them does not appear. Vance says he was "dragged" around the house and about the premises until he got mad and offered to fight any of them if they would lay aside the artillery. In this period of alleged detention the two state witnesses say that Johnson and perhaps Cochrane or Dillard asked them for money; and it was in this period that Dillard compelled Vance to write and sign the check charged in the indictment as one of the articles of which he was robbed. Every act or word done or spoken by any of their alleged captors is treated by the prosecution as the joint act and word of all. The evidence for the defense is entirely to the contrary. It would serve no useful purpose to detail any portion of it except that which relates to the taking from the person of Vance the pistol, and the incident relating to the signing and delivery of the check to Dillard, the prohibition officer. Johnson and Morris say Vance was drunk when they arrived and was on horseback in Johnson's yard. Johnson knew him and addressed him as "Uncle Cal." Morris and Vance were entire strangers. As Johnson passed Vance on the way to the house, he was called back by the latter, and during a colloquy between them the efficient cause of the drunken condition of Vance was discernible in a bottle carried by him in his overcoat pocket. Morris took the bottle or attempted to take it out of the pocket when Vance became abusive, attempted to draw his revolver with a threat to shoot, when Morris drew his own pistol and told him to keep his gun where he had it. Cochrane and Dillard then came forward having witnessed the affair from the porch, and Dillard informed Vance that he would be compelled to place him under arrest for having in his possession moonshine liquor. Cochrane then attempted to take Vance off the horse, and Dillard went to Vance and disarmed him. They all then went into the house. The weather was cold and it was snowing. Johnson and Morris deny any knowledge of the execution of the check, or the purpose for or manner in which it was given. They are corroborated by Mrs. Johnson and her daughter. Dillard was dead and the whereabouts of Cochrane was unknown at the time of the trial. The evidence of Vance is exceedingly unsatisfactory; it is rambling, disconnected and contradictory. That of Dorsey is more intelligent.
The case for the state developed upon the theory that Dillard, Johnson, Cochrane and Morris were banded together for the purpose of committing the alleged robbery, aided by Johnson's wife, daughter and father, and that any act or declaration by any of them was the...
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