State v. Riley

• Decision Date: 24 February 1967
• Docket Number: No. 12565,12565
• Citation: 151 S.E.2d 308,151 W.Va. 364
• Court: West Virginia Supreme Court
• Parties: , 24 A.L.R.3d 1208 STATE of West Virginia v. Waymond F. RILEY.

Page 308

151 S.E.2d 308

151 W.Va. 364, 24 A.L.R.3d 1208

STATE of West Virginia v. Waymond F. RILEY.

No. 12565.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 28, 1966.

Decided Nov. 22, 1966.

Rehearing Denied Feb. 24, 1967.

Syllabus by the Court

1. A motion or prayer to quash an indictment contained in a plea in abatement with an allegation that no legal evidence was introduced before the grand jury is not good grounds for quashing an indictment.

2. 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.

3. Affidavits which merely state the opinion of an affiant with conclusions that local prejudice exists against a defendant are not sufficient grounds for the granting of a change of venue.

4. An application for a change of venue in a criminal case is addressed to the sound discretion of the trial court and the burden rests upon the defendant to show good cause for the change.

5. Factual statement and widespread sentiments published by newspapers are not sufficient for a change of venue.

6. It is not sufficient merely to show that prejudice exists against an accused, but it must appear that the prejudice against him who so great as to prevent him from receiving a fair and impartial trial.

7. If the state fails to reply to a motion for a change of venue, or to file counter affidavits, it then becomes a question of law for the court to ascertain whether or not the defendant has made a case sufficient to support the granting of the motion for a change of venue; and if the trial court finds that the contents of the exhibits and affidavits are not sufficient in law to sustain the granting of a change of venue, such motion should be denied.

8. It is uniformly held that a motion for a change of venue must be presented at the earliest practical moment.

9. The general rule is that an application for a change of venue comes too late if it is made after the submission of other questions for the court's determination.

10. The only persons disqualified by statute from jury service in this state are idiots, lunatics, paupers, vagabonds, habitual drunkards, and persons convicted of infamous crimes.

11. There are no statutory provisions in West Virginia relative to challenges for cause of prospective jurors and the common law rule pertaining thereto prevails in this State.

12. One of the grounds of challenge for cause at common law is that a prospective juror was formerly a juror in the same case, but a challenge for cause is not available under this common law rule merely for the reason that a prospective juror has been a juror in a different or another case involving the same defendant.

13. Even if a petit juror served on the jury which convicted a defendant and also had served on the grand jury which had indicted him, the verdict of the jury will not be set aside on motion of the defendant after the verdict if it appears that the defendant had a fair and impartial trial.

14. The fact that a juror was a member of a grand jury which returned an indictment against the accused for a similar offense but not the same is not ground Ipso facto for his exclusion from service on the petit jury to try the case.

15. 'When it appears that a juror in a subsequent criminal case can fairly and impartially act and render a just verdict upon the evidence adduced at the trial, he is not disqualified to serve as such in the subsequent case merely by reason of his service as a juror or his presence as a spectator at a prior trial of a different defendant charged with a different but similar offense, although the evidence is similar and the witnesses in behalf of the prosecution are the same in each case.' Point 3, syllabus, State v. Carduff, 142 W.Va. 18 (93 S.E.2d 502).

16. The venue for an embezzlement involving a check out of which defendant received cash is properly laid in the county where the accused drew the check and the conversion was consummated by charging of the amount of the check against the drawee's account.

17. Where one having authority to draw checks on a county account does so and unlawfully sends or gives the check to a third party who is not entitled to receive it, he is guilty of embezzlement.

18. There is no common law crime of embezzlement, and the statute merely makes one who converts to his own use the property of another which is legally in his custody guilty of larceny.

19. The essential elements of embezzlement are a trust relationship to the property or money involved, belonging to someone else and in the possession of the defendant by virtue of his office and converted to his own use with intent to defraud.

20. In a prosecution for embezzlement the property embezzled must ordinarily be proved as alleged in the indictment, but if a check, or other evidence of indebtedness, was merely the means by which the money alleged to have been embezzled was procured, there is no variance.

21. A judgment will not be reversed for any error in the record introduced by or invited by the party asking for the reversal.

22. All instructions are the court's instructions and shall be read by the court to the jury as the action and ruling of the court, without reference to or disclosing the party by whom they may have been offered.

23. Instructions are properly refused that are repetitious or covered by other instructions given or are not complete or proper statements of the law applicable to the case being tried.

24. The court may refuse all instructions offered by either party and give a written charge of its own.

25. An appellate court will not reverse a lower court for any error in the trial unless the error is harmful to the defendant.

Chester Lovett, Charleston, for plaintiff in error.

C. Donald Robertson, Atty. Gen., Leo Catsonis, Asst. Atty. Gen., Charleston, for defendant in error.

BERRY, Judge:

The defendant, Waymond F. Riley, was indicted and convicted in the Circuit Court of Wirt County, West Virginia, for the crime of embezzlement. Multiple grounds of alleged error totaling some 90 in number were assigned to support the defendant's motions for a new trial and in arrest of judgment, which were overruled by the trial court. The defendant was sentenced on October 8, 1965, to confinement in the West Virginia State Penitentiary for a period of not less than one and not more than ten years. Upon application to this Court a writ of error and supersedeas were granted on March 28, 1966, to the judgment of the trial court. The case was submitted for decision on arguments and briefs at the September Regular Term 1966. The assignments of error were reduced in this Court to 18 in number, some of which are repetitious and others without merit.

The defendant was superintendent of schools in Wirt County, West Virginia, for about two years, ending in the middle of the year 1963, after an audit of the finance department of the Board of Education by the State Tax Commission disclosed numerous irregularities. As a result of this audit several indictments were later returned against the defendant, and other persons, on multiple charges indicated therein. The particular charge in this case is based on an indictment returned by the Grand Jury of Wirt County charging the defendant with embezzling $1892.40 of monies of the Board of Education of Wirt County, the description of which to the grand jury was unknown by virtue of said monies or property being in his possession, care or management, because of his position as superintendent of schools of Wirt County, and as such, Secretary of the Board of Education of that County.

On September 28, 1965, the defendant appeared before the Circuit Court of Wirt County with his attorney and presented a plea in abatement based on allegations that there was no evidence presented to the grand jury that the defendant received any United States currency belonging to the Board of Education of Wirt County, or that defendant stole, embezzled or converted to his own use any United States currency belonging to the Board of Education of Wirt County, that such charges were based on hearsay statements, and that the grand jury had no legal or competent evidence before it upon which to return an indictment against the defendant, and prayed for the indictment to be quashed. The plea was ordered filed by the trial court and after a hearing thereon was denied, after which the defendant presented a motion for a bill of particulars which was ordered filed by the trial court, and after a hearing thereon, this motion was denied and the defendant then pleaded not guilty to the charge contained in the indictment, issue was joined thereon and the case was set for trial on October 4, 1965.

On October 4, 1965, the defendant moved the court in writing out of the presence of the jury to grant him a continuance in order to enable him to study and question any additional jurors subpoenaed to attend the Circuit Court of Wirt County at its September, 1965 term. This motion was ordered filed and the court, after hearing arguments of counsel and maturely considering said motion, overruled it.

After the motion for a continuance was overruled the defendant moved the court in writing out of the presence of the jury to grant him a change of venue which motion was ordered filed, and the court, after hearing arguments of counsel thereon and maturely considering such motion, overruled it. To all such rulings of the court the defendant objected and excepted.

The motion for a continuance was based on a contention that approximately 34 additional jurors had been summoned to attend the Circuit Court of Wirt County for the September, 1965 term, which the defendant did not know about until three days before the case was set for trial, and therefore, he did not have adequate opportunity to investigate and...