State v. Newman, 6643.

• Decision Date: 25 February 1930
• Docket Number: No. 6643.,6643.
• Citation: 152 S.E. 195
• Parties: STATE. v. NEWMAN.
• Court: West Virginia Supreme Court

152 S.E. 195

STATE.

v.NEWMAN.

No. 6643.

Supreme Court of Appeals of West Virginia.

Feb. 25, 1930.

Syllabus by the Court.

Error to Circuit Court, Cabell County.

William Gordon Newman was convicted of robbery while armed with a deadly weapon, and he brings error.

Affirmed.

Daugherty & Daugherty, of Huntington, for plaintiff in error.

Howard B. Lee, Atty. Gen., and R. A, Blessing, Asst. Atty. Gen., for the State.

LIVELY, P.

William Gordon Newman confessed to the crime of robbery, being armed with a deadly weapon, and on November 15, 1928, was sentenced to the penitentiary for 25 years; and he prosecutes error on the ground that the court's sentence was unreasonable and unconstitutional.

Robert Henry Jackson, a boy of 19 years, was in charge of a filling station in the city of Huntington, and at about 11 o'clock on the night of September 6, 1928, was robbed of $37.03 by Newman and his companion in crime, Clarence Thomas Kirtley, the latter being armed with a revolver. Newman was 32 years of age and was a resident of Alta Vista, Va.; Kirtley was 26 years of age and resided at Roanoke, Va. Several months before the robbery they met, became acquainted, and about 2 weeks before the date of the robbery left Roanoke together in a Chevrolet sedan car owned by Newman's father. It does not appear what their journeyings were during the 2 weeks of absence from Roanoke, but several days before the robbery they arrived in Huntington and became guests of the Florentine Hotel. Newman owned a pistol which they brought with them. On the night of the robbery they drove their car to a speak-easy, or some similar institution operated by a negress, with the purpose of impersonating prohibition officers and arresting the occupants of the house, and releasing them for money. They were not successful in this attempt, but did get a small quantity of moonshine liquor. They then entered the car and drove around the city, Kirtley stating that they were looking for likely places to hold up and rob of money. They came to Jackson's place about 11 o'clock that night; and on observing some one else besides the attendant at the station, drove around the square until that other person left, and then drove into the filling station and requested gas for the car and that the oil be changed, stating that they had driven it for about 1, 000 miles without a change of oil. The car was driven over the pit. Jackson went into the pit, drained the oil, and then attempted to put fresh oil in the car, but the cap over the receiving tube was refractory. He then went back down into the pit, where there was a small room in the concrete with an iron door there-to which contained tools, to get a wrench to remove the cap. As he came back towards the car, Kirtley pointed a pistol at him and demanded and took from him his money, which consisted of silver and bills. Kirtley handed the silver money to Newman, who put it in his pocket, and kept the bills himself. The question then arose as to what they should do with Jackson. They asked him if he had observed the make of the car, and he told them that it was a Chevrolet sedan; they then asked him if he knew their license tag, and he said that he did not, although he had observed that it was a Virginia license on the car. According to Kirtley and Jackson, Newman then directed that he be put in the cell and locked up. Jackson pleaded with them not to put him in that place because he would suffocate therein before morning, and requested that he be allowed to remain on the steps of the pit until they made their escape. Upon the insistence of Newman he was put into the cell, secretly taking the lock off the door and carrying it into the cell. When he was in, they placed a screwdriver so as to keep the door closed and prevent him from getting out. They then hurriedly filled their car with oil and drove away, taking with them a pair of pliers which Jackson had left in the car. Some time afterward, Jackson attracted the attention of boys who were passing on the street and they removed the screwdriver. He then called his employer and police and gave them the details of the robbery. The car was soon located in a garage and identified by means of the make of car, the license plate, and Jackson's pliers. The two men were afterwards found in the hotel in separate rooms each with a woman, and the money was recovered. Having elected to have a separate trial, Kirtley voluntarily became a witness for the state at Newman's trial and made a clean breast of the whole matter. Newman then went upon the stand and gave his version of the affair, which, in the main, was that given by Kirtley and Jackson, but laid the entire blame upon Kirtley. He said Kirtley was the leading actor in the whole matter. He denied that he had insisted that Jackson be placed in the cell with the iron door. Realizing the futility of further defense, at the conclusion of Newman's testimony, he asked permission to withdraw his plea of not guilty and enter a plea of guilty, which the court allowed to...