State v. Parsons, 6153.

• Citation: 152 S.E. 745
• Decision Date: 25 March 1930
• Docket Number: No. 6153.,6153.
• Court: Supreme Court of West Virginia
• Parties: STATE . v. PARSONS.

152 S.E. 745

STATE .
v.
PARSONS.

No. 6153.

Supreme Court of Appeals of West Virginia.

March 25, 1930.

Error to Circuit Court, Taylor County.

Palace Parsons was convicted of breaking and entering another's chicken house with intent to steal, and he brings error.

Reversed, and new trial awarded.

W. Bruce Talbott and E. Wayne Talbott, both of Philippi, for plaintiff in error.

Howard B. Lee, Atty. Gen., and W. Elliott Nefflen, Asst. Atty. Gen., for the State.

HATCHER, J.

Palace Parsons, Howard Mayle, and Ted Dalton were jointly charged with breaking and entering a chicken house of another, with intent to steal. Palace was tried separately, found guilty, and sentenced to the penitentiary for two years. The conviction was based on circumstantial evidence and a confession of guilt by defendant.

The indictment has three counts. The defendant made a general motion to quash. The second and third counts do not contain the names of any of the accused, and are consequently invalid. The first count does not fix the date of the crime; but, as time is not of the essence of the offense, that omission is of no consequence under Code, c. 158, § 10. The first count charges that the chicken house was "burglariously" entered. That word may be omitted as surplusage, and the remainder of the count is sufficient under Code, c. 145, § 13. As the first count is valid, the motion was properly overruled.

[152 S.E. 746]

The statement of the law governing the admissibility of a confession, in 3 Russel on Crimes (5th Ed.) 478, has been preferred by many courts, and is as follows: "But a confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. * * * A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted." Page 2157 (7th Ed.).

After quoting the above from Russel, the Supreme Court of the United States said, in Bram v. U. S., 168 U. S. 532, 543, 18 S. Ct. 183, 187, 42 L. Ed. 568: "And this summary of the law is in harmony with the doctrine as expressed by other writers, although the form in which they couch its statement may be different. 1 Greenl. Ev. (15th...