State v. Nuckols

• Decision Date: 11 March 1969
• Docket Number: No. 12672,12672
• Citation: 166 S.E.2d 3,152 W.Va. 736
• Parties: STATE of West Virginia v. Jack A. NUCKOLS.
• Court: West Virginia Supreme Court

Page 3

166 S.E.2d 3

152 W.Va. 736

STATE of West Virginia v.Jack A. NUCKOLS.

No. 12672.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 25, 1968.

Decided Dec. 17, 1968.

Rehearing Denied March 11, 1969.

Syllabus by the Court

1.'The provision of section 2, Article 2, Chapter 52, Code, 1931, that the jury commissioners 'shall, at the levy term of the county court each year, and at any other time when required by the court which appointed them, or the judge thereof in vacation, prepare a list of not less than one hundred nor more than two hundred qualified persons of their county, for grand jury service,' in requiring the preparation of such list is mandatory and strict compliance with that requirement is essential to the selection of a lawful grand jury, but, in specifying the time at which such list is to be prepared and the maximum number of qualified persons whose names are to be placed upon it, the provision is directory and substantial compliance with those requirements is sufficient in the selection of a lawful grand jury.'Pt. 2, syllabus, State v. Carduff, 142 W.Va. 18. (93 S.E.2d 502)

2.'The provision of Section 2, Article 2, Chapter 52, Code, 1931, as amended, that persons selected and drawn for grand juries shall be chosen from the respective magisterial districts as nearly as may be in proportion to the population of such districts, and the provisions of such section that at the time the list of persons for grand jury service is made up, the jury commissioners shall cause all the names thereon to be written, each on a separate ballot, and shall fold, roll or prepare the same so as to resumble each other as nearly as may be, and so that the names written thereon shall not be visible on the outside, and shall inclose the ballots for each magisterial district in a separate envelope indorsed with the name of the magisterial district and the number of ballots inclosed, and shall deposit all the ballots, with the list, in a secure box to be prepared for the purpose, which shall be delivered to and kept safely by the clerk of the circuit court, and shall be known as the 'grand jury box' and shall be opened only by the jury commissioners or by order of the judge of the court having control thereof, most of which provisions deal with and prescribe the procedure to be followed in the use of such list and ballots, are directory; and a grand jury drawn from such list and in the selection of which the foregoing provisions are substantially complied with, is a lawful grand jury and an indictment by such grand jury is not vitiated or rendered void because there has not been strict compliance with such directory provisions, if the members of such grand jury are qualified for grand jury service and no fraud or corruption has occurred in and no prejudice to any right of the defendant has resulted from the manner in which such grand jury was selected and impaneled.'Pt. 2, syllabus, State ex rel. Mynes v. Kessel, 152 W.Va. ---(158 S.E.2d 896)(Decided by this CourtJanuary 23, 1968).

3.The law governing the selection and drawing of grand juries by jury commissioners is also applicable to petit juries as selections and drawings are made in the same manner as to procedure.

4.The word 'men' in Code, 52--2--3, relating to composition of juries is merely descriptive of persons and is in conformance with the language used in Article III, section 21 of the constitution allowing service without regard to sex and must be read in connection with the provisions of the constitution relative to jury service.

5.The word 'oath' in this state includes both swearing and affirming and does not violate that first and fourteenth amendments to the Constitution of the United States with regard to the religious aspect, and no indictment in this state is invalid for the failure to show that it was returned upon the oath or affirmation of the jurors.

6.'An indictment is generally sufficient if it follows the language of the statute creating the offense charged, and it ordinarily need not allege the mode or manner of the commission of the offense.'Pt. 2, syllabus, State of West Virginia v. Johnson, 134 W.Va. 357. (59 S.E.2d 485)

7.'The granting or denial of a motion for a bill of particulars, or a motion for a continuance, rests in the sound discretion of the trial court, and unless it appears that such discretion is abused the ruling of the trial court will not be disturbed.'Pt. 2, syllabus, State v. Riley, 151 W.Va. 364. (151 S.E.2d 308) 8.A court of record speaks only by its record and where an order recites the appearance of the defendant in discharge of his recognizance at the time the jury was selected for the trial of the case it is sufficient to show his presence in court and in his own proper person at the start of his trial.

9.There is a presumption that the defendant is present throughout the proceedings of his trial when the record indicates that he was present at the various sequential stages, in the absence of any showing in the record to the contrary.

10.The burden rests upon the defendant to affirmatively show from the record that he was not present during every stage of his trial.

11.'The jury is the trier of the facts and in performing that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses.'Pt. 2, syllabus, State v. Bailey, 151 W.Va. 796. (155 S.E.2d 850)

12.The constitutional provision with regard to search and seizure and warrants therefor apply only to officers and not to private persons.

13.The rule is well established that the credibility of a character witness can be tested by referring to certain things he should have heard that would indicate that the conclusion that the reputation was good was incorrect or not sustained.

Preiser, Greene & Hunt, Stanley E. Preiser, and L. Alvin Hunt Charleston, W. Va., for plaintiff in error.

C. Donald Robertson, Atty. Gen., Leo Catsonis, and Morton I. Taber, Asst. Attys.Gen., Charleston, W. Va., for defendant in error.

BERRY, President:

This is an appeal by Jack A. Nuckols, a former Commissioner of Motor Vehicles of West Virginia, hereinafter referred to as defendant, from a final judgment of the Circuit Court of Kanawha County, West Virginia, of November 23, 1966, which affirmed a judgment of the Intermediate Court of Kanawha County of April 12, 1966, convicting him of falsifying state accounts, in violation of the provisions of Code, 61--3--22.After the defendant's conviction by the jury in the Intermediate Court of Kanawha Countyhe was sentenced by said Court for a term of from one to ten years in the West Virginia State Penitentiary.The case was submitted on arguments and briefs for decision of this Court at the September Regular Term, 1968.

The charges against the defendant can be divided into three categories: (1) Alleged employees of Department of Motor Vehicles put on payroll by defendant but who did little or no work for the State, (2) false expense accounts filed by the defendant, and, (3) improper purchase of gasoline on state credit cards for eprsonal use in his automobile and airplanes not owned by the state while neither was being used by the state in its business.

The proof of these charges resulted in a complicated case requiring about 200 exhibits of various personnel cards, payroll sheets, expense accounts, transmittal sheets, gasoline purchases sheets, and related papers which were stated to have been prepared by or under the direction of the defendant, approved by him and transmitted to the state auditor who in turn issued state warrants or checks on the state treasurer who designated the paying bank with proper signature, after which they were delivered to the Department of Motor Vehicles and were then cashed and the money obtained thereby either kept by the defendant or delivered to others who were not legally entitled to such money.

The lengthy evidence introduced during the trial will be discussed in more detail under the various assignments of error but briefly it was to the effect that certain persons were on the payroll of the Department of Motor Vehicles and were doing work of a nature not included in the positions to which they were assigned and designated on their personnel record.Other persons were on the payroll of the Department of Motor Vehicles who were never present in the Motor Vehicle offices; in most instances these persons were unknown to anybody in authority except the defendant, had not been seen by supervisors and did no work in the various departments and divisions to which they had been designated and assigned which was shown by the testimony of the various department and division heads.The evidence of the state was to the effect that these employees were placed on the payroll at the direction of the defendant and their payroll transmittals were signed and certified by him.

Evidence was introduced of expense accounts transmitted by the defendant for mileage, meals and expenses for various dates and various places with added evidence to the effect that on the same dates the defendant was actually at different places as shown by other expense accounts and gasoline purchased for state cars.There was further testimony that travel expense, meals, lodging and expenses for gasoline in some instances were claimed by the defendant and payments made therefor to him by the state when he was on personal business, and that gasoline purchases were charged by him to the Department of Motor Vehicles on Humble Oil Company credit cards for cars and airplanes when the evidence indicated the trip was a personal one.

The defendant's evidence was to the effect that he had the right to employ the people in question and have them placed on the state payroll; that he used them for state business; that on trips to Florida, Colorado, etc. he did some work in connection with his state position; and that there was a logical explanation, which he gave...