State v. Powers.*, (No. 4546.)

CourtSupreme Court of West Virginia
Writing for the CourtLIVELY
Citation113 S.E. 912
Decision Date26 September 1922
Docket Number(No. 4546.)
PartiesSTATE. v. POWERS.*

113 S.E. 912

STATE.
v.
POWERS.*

(No. 4546.)

Supreme Court of Appeals of West Virginia.

Sept. 26, 1922.


(Syllabus by the Court.)
[113 S.E. 913]

Error to Circuit Court, Doddridge County.

James Powers was convicted of grand larceny, and be brings error. Affirmed.

G. W. Farr and W. E. Brown, both of West Union, for plaintiff in error.

E. T. England, Atty. Gen., and H. A. Blessing and R. Dennis Steed, Asst. Attys. Gen., for the State.

LIVELY, J. Defendant, James Powers, prosecutes this writ of error from a judgment of the circuit court pronounced on the 3d day of December, 1921, sentencing him to confinement in the penitentiary for five years for the crime of grand larceny. The indictment charges him and three other persons, Young, Bertone, and Hall, with feloniously stealing and carrying away a Ford touring car, the property of J. A. Barr and C. A. Dowler.

The defendants, who were strangers in the town of West Union, were first seen there together about dark on the evening of April 22, 1921, A girl, 15 years of age, said she saw them together that day on a westbound passenger train which arrived at West Union about 7 p. m., two of them having boarded the train at Clarksburg, and the other two at Salem. Young and Powers deny having been on that train. They both said they (Young and Powers) got together near Long Run the night before, slept in a barn, got breakfast at a farmhouse, boarded a passenger train at Long Run, and left it before it reached West Union, and walked into the town. There was evidence tending to corroborate them in this particular. A short time before, and after dusk, they were seen by various persons in various parts of the town, and their actions and movements were of such an unusual character as to excite comment and suspicion, and the chief of police was notified to be on watch for them. One of them carried a small satchel, and Powers, being larger than the others and wearing spectacles, was easily identified. They were seen on the street near the garage from which the car was taken. The chief of police passed them in his car near the outskirts of the town on the road leading towards Sistersville, between 9 and 10 o'clock that night, and, after going a short distance beyond them, turned his car and Came back, but they had disappeared from the highway. About 10:30 he again drove over that road to ascertain their movements, and observed one of them only on or near the road at about the same point, which was about one-half mile from the garage from which the car was stolen. The car was taken between 11 o'clock and 12:30 that night. A slight drizzle of rain had begun, and the night was dark. The four men in the car were seen by Dale Scott about 12:30 a short distance from the town on the road leading to Sistersville, when they stopped the car and inquired from him directions to Centreville. The roads were muddy, the night dark, and after various vicissitudes occasioned by the mud, darkness, and lack of knowledge of the proper route, testified to by various witnesses to whom they gave evasive answers to pertinent questions, they reached the village of Centreville, and stopped to purchase more gasoline from Underwood, when Lloyd A. Kiggs approached them and said the car had been stolen at West Union, and that they could go no farther. Young denied that the car was stolen. It appears that about this time Mr. Barr, at West Union, had discovered the theft of his car, and had telephoned to various persons on the roads leading from West Union to be on the outlook for it, and was talking over the telephone with Kiggs at the time this car drove up to get the gasoline, and gave him the license number of the car. Hall, one of the defendants, appears to have been out of the car, standing near It, at the time Riggs accosted them. The driver, Young, immediately started up his car, and they all seemed to be in a hurry to get away, so much so that they forgot to pay for the gasoline, and had proceeded a short distance when the car stopped, and one of the men in the rear of the car paid for the gasoline out of the rear, and they immediately went forward very swiftly. Hall started in the opposite direction, and took to the hills near the town. The car proceeded a short distance, and again stuck on a hill

[113 S.E. 914]

near the residence of Wm. H. Barnhart, where they all abandoned it and proceeded rapidly up the hill on foot. Defendant was the last to leave the car, and had in his hand the satchel, which, after proceeding a short distance, he gave to one of the other defendants. They disappeared over the hill. immediately a hue and cry was raised, and many persons joined in the chase. The sheriff from West Union arrived shortly afterwards, and he and Squire Meredith participated in the chase. The three men, Powers, Young, and Bertone, were discovered several miles from the place they left the car, and near the mouth of Indian creek, Bertone being crouched on the bank of the stream, and Powers and Young in the act of crossing in a boat. They were commanded to return to the shore, and replied that as soon as they could turn the boat they would come back, but, on the contrary, went to the opposite shore, and, leaving the boat, ran up the bank through the brush and on up the hill. When Bertone was approached he drew a revolver and threatened to shoot any one who came near him, retreated down the stream, and was not followed at that time. He was afterwards captured. Powers and Young were promptly followed. They separated near the brow of the hill; one going to the right and the other to the left Young was first followed by his pursuers, and captured a short distance over the hill. Powers was afterwards discovered ingeniously secreted in a slip or slide on the hillside. He had a small steel punch in his pocket, and a loaded revolver was found in the mud where he was concealed. Hall was afterwards captured, and all three were taken before Squire Meredith at Centreville.

The trail of the three men was followed from where the car was abandoned, and in the edge of a brush pile near a wood the satchel was found freshly covered with leaves, and about 15 feet from the satchel a pint bottle containing glycerine, also freshly covered with leaves, was found. On the other side of the brush pile, opposite the place where the satchel was found, a small torn Rand & McNally map of Tennessee was discovered, also freshly secreted in the leaves. The satchel contained a small roll of wire used for hanging pictures, a box of cartridges, soap, some tobacco, gauze, a small bit of raw cotton, some liniment, a bottle of sal hepatica, a railroad schedule, some old socks, a shirt, and a cork.

Defendants were jailed, and the indictment followed. At the August term of court Young confessed the theft, and was sentenced. Bertone was tried and acquitted. At the following November term of court this trial was had, resulting in the conviction of Powers. Young, (who admitted "Harry Young" was an assumed name), said he alone stole the car. He had told Powers "in a cynical way" before they came to West Union that he had a car in that town, and would ride him over to some town in Tyler county, and Powers proposed to pay for the ride, and furnish the gasoline necessary. Seeing that Powers took the proposition as in earnest, he thought he must make good, and stole the car. Powers corroborates Young. Hall and Bertone did not testify. At West Union, Powers proposed that Hall and Bertone, whom he said they met at that place, should go in the car with them, to which he assented. He said he inquired the way to Sistersville, and then took his companions out on the Sistersville road, where they went into a barn to be sheltered from the rain, left them there with information that he would go back, get his car, and pick them up. He testified that the others knew nothing about the car being stolen, and he gave them no information to that effect until the car stalled on the hill at Centreville, when he advised them of the fact, and they all left the car and sought to avoid arrest. He claimed ownership of the grip and its contents, but denied that there was any pistol therein. Both Powers and Young refused to give any information of their movements prior to the 21st of April. They refused to tell if they had known the other defendants at any time prior thereto, both claiming that the federal government was preferring charges against them, and that if they testified as to their whereabouts prior to the time they stole the car the sleuths of the federal government would warp their testimony and use it against them to their detriment in the threatened prosecutions. Powers testified that he had agreed to pay for being hauled in the car, and in addition to furnish the necessary gasoline.

There are many assignments of error. The principal assignments are: (1) That the court refused a change of venue; (2) that the evidence was not sufficient to sustain the verdict under the indictment; the verdict finding the defendant guilty as a principal in the crime; and (3) that the instructions given were erroneous.

The motion for change of venue was supported by the affidavits of Waldo, Thompson, Abies, Mrs. Clara D. Brown, G. W. Farr, and W. R. Brown, the last two being counsel for defendant. These affidavits show that at the August term of the court upon the return of the verdict of not guilty in the Bertone trial, Smith and Markey, and other persons, were very bitter in their denunciations of the jury that had returned the verdict; and suggestions were made by them and others of the town that the people should take the law in their own hands and see that the prisoners should be punished; some going to the extent of saying that they should be lynched. Abies, who was one of the jurors, says various persons insulted him, threatened to hang him, and otherwise abused him for returning the verdict, and

[113 S.E. 915]

since that time this attitude toward him has continued; that when he...

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47 practice notes
  • State v. Ashcraft, No. 15822
    • United States
    • Supreme Court of West Virginia
    • November 10, 1983
    ...State v. Goff, 166 W.Va. 47, 272 S.E.2d 457 (1980); State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975); State v. Powers, 91 W.Va. 737, 113 S.E. 912 (1922), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980). Consequently, we find no error in the refusal of th......
  • State v. Goff, No. 14151
    • United States
    • Supreme Court of West Virginia
    • December 2, 1980
    ...the jury is invited to convict on a lesser standard of proof." A similar admonition can be found in State v. Powers, 91 W.Va. 737, 113 S.E. 912 We, as well as the United States Supreme Court, have recognized the fundamental right to have a presumption of innocence and burden of proof i......
  • State ex rel. Muldrew v. Boles, No. 12687
    • United States
    • Supreme Court of West Virginia
    • January 23, 1968
    ...State v. Roberts, 50 W.Va. 422, 40 S.E. 484; State v. Cremeans, 62 W.Va. 136, 57 S.E. 405. * * *.' State v. Powers, 91 W.Va. 737, 747, 113 S.E. 912, Code, 1931, 61--11--6, is in part as follows: 'In the case of every felony, every principal in the second degree, and every accessory before t......
  • State v. Boswell, No. 15099
    • United States
    • Supreme Court of West Virginia
    • July 15, 1982
    ...State v. Goff, 166 W.Va. 47, 272 S.E.2d 457 (1980); State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975); State v. Powers, 91 W.Va. 737, 113 S.E. 912 (1922), overruled on other grounds, State v. Petry, 166 W.Va. 153 273 S.E.2d 346 (1980). We reasoned in State v. Starr, supra, that [170 W.Va......
  • Request a trial to view additional results
47 cases
  • State v. Ashcraft, No. 15822
    • United States
    • Supreme Court of West Virginia
    • November 10, 1983
    ...State v. Goff, 166 W.Va. 47, 272 S.E.2d 457 (1980); State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975); State v. Powers, 91 W.Va. 737, 113 S.E. 912 (1922), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980). Consequently, we find no error in the refusal of th......
  • State v. Goff, No. 14151
    • United States
    • Supreme Court of West Virginia
    • December 2, 1980
    ...that the jury is invited to convict on a lesser standard of proof." A similar admonition can be found in State v. Powers, 91 W.Va. 737, 113 S.E. 912 We, as well as the United States Supreme Court, have recognized the fundamental right to have a presumption of innocence and burden of proof i......
  • State ex rel. Muldrew v. Boles, No. 12687
    • United States
    • Supreme Court of West Virginia
    • January 23, 1968
    ...State v. Roberts, 50 W.Va. 422, 40 S.E. 484; State v. Cremeans, 62 W.Va. 136, 57 S.E. 405. * * *.' State v. Powers, 91 W.Va. 737, 747, 113 S.E. 912, Code, 1931, 61--11--6, is in part as follows: 'In the case of every felony, every principal in the second degree, and every accessory before t......
  • State v. Boswell, No. 15099
    • United States
    • Supreme Court of West Virginia
    • July 15, 1982
    ...State v. Goff, 166 W.Va. 47, 272 S.E.2d 457 (1980); State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975); State v. Powers, 91 W.Va. 737, 113 S.E. 912 (1922), overruled on other grounds, State v. Petry, 166 W.Va. 153 273 S.E.2d 346 (1980). We reasoned in State v. Starr, supra, that [170 W.Va......
  • Request a trial to view additional results

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