State v. Ringer

• Decision Date: 23 September 1919
• Citation: 100 S.E. 413
• Court: West Virginia Supreme Court
• Parties: STATE. v. RINGER.

100 S.E. 413

STATE.

v.RINGER.

Supreme Court of Appeals of West Virginia.

Sept. 23, 1919.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

brings error. Reversed, verdict set aside, and a new trial awarded.

W. R. Brown, of West Union, and R. E. Bills, of Parkersburg, for plaintiff in error.

E. T. England, Atty. Gen., Charles Ritchie, Asst. Atty. Gen., and James S. Wade, of Parkersburg, for the State.

MILLER, P. Found "guilty as charged in the within indictment, " the judgment upon the verdict of the jury complained of was that defendant be confined in the penitentiary of this State for the period of three years.

Numerous points of error are relied on for reversal. The first we will consider is that the court upon the prisoner's motion should have quashed the indictment and each of the three counts thereof, upon two grounds: (1) That each of the counts charges a separate and distinct offense; (2) that the third count in no way connects the offense therein charged with the offenses alleged to have been committed by the defendant in the first and second counts by reference thereto or in time, place or circumstance, wherefore not properly joined in an indictment for the other offenses with which he is therein accused.

The first count charges the defendant with having on the—day of December, 1917, feloniously broken and entered a railroad car number 67658 belonging to the Chicago & Northwestern Railway Company, a corporation, in the possession of the Baltimore & Ohio Railroad Company, with intent the goods and chattels of the latter company in the said car feloniously to steal and carry away. The second count charges the defendant afterwards, to-wit, on the —day of December, 1917, without breaking did enter the same car, with like intent. The third count avers that defendant, on the — day of December, 1917, in Wood County, twenty-three (23) quarts of whiskey of the value of one dollar and fifty cents per quart and of the aggregate value of thirty-four dollars and fifty cents, the goods and chattels of the Baltimore & Ohio Railroad Company, then and there being found, unlawfully and feloniously did steal, take and carry away.

To sustain their contention that the second count is in no way connected with or related to the crime charged in the first count, counsel for defendant lay much emphasis on the word "afterwards, " contending that by the use of that word the grand jury intended another and distinct crime, not related to the one alleged in the first count, or arising out of the same transaction. We think this contention not well founded. Though the two counts charge different and distinct offenses, they are related to each other by reference to the same car number, the ownership and possession thereof, and of the goods therein, and we do not think the word "afterwards" in the second count should be construed as referring to a different transaction than that charged in the first count and so as to render it improper within the rules of criminal pleading to include the two offenses in the same indictment. If after breaking and entering, the defendant at the same time and in the same connection re-entered without breaking with the same intent charged, the acts would be so connected as to constitute one continuous act, and the two offenses might well be said to arise out of that transaction, justifying the joining of the two counts. If all of the offenses charged in one or more counts of an indictment represent but one continuous transaction, it is well settled in this State and in Virginia that they may be so joined as distinct offenses in different counts, and that where properly joined as distinct offenses, and unless they appear on the face of the indictment to involve a different transaction, a motion to quash for misjoinder should be overruled. State v. Smith, 24 W. Va. 814, 818; State v. Shores, 31 W. Va. 491, 495, 7 S. E. 413, 13 Am. St. Rep. 875; State v. McClung, 35 W. Va. 280, 282, 13 S. E. 654, and cases cited; Dowdy v. Commonwealth, 9 Gratt. Anno. 728, and note, 60 Am. Dec. 314; Benton's Case, 91 Va. 782, 21 S. E. 495; Hausenfluck v. Commonwealth, 85 Va. 702, 8 S. E. 683.

It is said however of the third count that the offense charged appears in no way connected in time, place or circumstance with those charged in the first and second counts. But the time is the same in all three counts; the offense is of the same general character, and while the goods alleged to have been stolen are not identified as those referred to in the previous counts, it does not appear that they are not, and the rule is that where it does not appear on the face of the indictment that the offenses charged represent distinct transactions, a motion to quash should not prevail. Should it afterwards appear, however, that the offenses charged in the several counts are not properly joined, the court may then require the State to elect upon which of the counts it proposes to stand, and proceed with the trial. State v. Shores, State v. Smith, and Hausenfluck v. Commonwealth, supra, and other cases cited supra. So we think the motion to quash and the subsequent motion in arrest of judgment, so far as based on the ground of misjoinder, were properly overruled.

Numerous exceptions were taken and saved by bills of exception to the rulings of the court on the admission of testimony of several witnesses as to the finding of other goods in the room and possession of the defendant, some of which were identified as having been taken from the railroad car mentioned in the indictment. Among them is an exception to the admission of a statement in writing signed by defendant and proven by the officers who searched his room and found the whiskey described in the third count, in which statement defendant purported to con-fess to the taking of the goods from the Baltimore & Ohio Railroad Company, of which he was an employee. We do not see how this evidence, though not particularly relevant, could have misled the jury or prejudice the defendant. If the jury believed he made the written statement confessing the offenses charged in the indictment as testified to by the witnesses, and that the goods other than the whiskey were stolen by him, the evidence tended to show guilty intent, one of the issues on the case. For such purpose evidence of other crimes and of goods found in defendant's possession is sometimes admissible. 1 People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193, note relating to larceny page 231, and cases annotated.

Complaint is made of the instructions to the jury, six in number, given at the instance of the State. Instructions number 1, 2, 4, and 6 present correct legal propositions pertinent to the issues and evidence in this case, and having been frequently approved in prior decisions, it is unnecessary to repeat what has many times been said of them in other cases. Instructions numbers 3 and 5 have been repeatedly condemned by this court, number 3 as not necessarily calling for reversal unless shown to have been prejudicial, but not so as to instruction number 5. Number 3 told the jury "that a reasonable doubt is not a vague or uncertain doubt and that what the jury believe from the evidence as men they should believe as jurors." Number 5 told the jury "that they are the sole judges of the evidence and that they may believe or refuse to believe any witness and that when passing upon credibility of witnesses they may take into consideration his interest in the matter in controversy, the reasonableness or unreasonableness of his statement, his bias or prejudice in the matter, if any appear, and his demeanor upon the witness stand."

Instruction number 3 we have many times and recently considered and said that it ought not...