State v. Ringer
| Decision Date | 23 September 1919 |
| Citation | 100 S.E. 413,84 W.Va. 546 |
| Parties | STATE v. RINGER. |
| Court | West Virginia Supreme Court |
Submitted September 16, 1919.
Syllabus by the Court.
The charge in the second count of an indictment for house breaking and larceny that the defendant "afterwards" without breaking did enter the particular car alleged to have been broken and entered in the first count but referring to the same car by number and alleging the commission of the offense on the same day as the offense alleged in the first count, is not bad on demurrer for misjoinder of offenses unrelated to the same transaction and the demurrer is properly overruled.
Nor is the third count in such indictment bad on demurrer for misjoinder of unrelated offenses, which charges the larceny of certain goods not specifically described in either of the two preceding counts but which lays the time on the same day as the offenses charged in the previous counts.
On the trial of such indictment the admission of evidence of the possession of other goods by defendant in the same room where the goods alleged to have been stolen were stored, and which the evidence tends to show were also stolen by defendant does not constitute reversible error, in the absence of evidence showing that defendant was prejudiced thereby.
An instruction on the subject of reasonable doubt telling the jury that "what they believe from the evidence as men they should believe as jurors," many times condemned, is erroneous and may constitute reversible error.
An instruction telling the jury that they may believe or refuse to believe any witness is erroneous. An instruction covering this subject should state the law substantially as the one approved in State v. Staley, 45 W.Va. 792, 32 S.E 198.
A bad instruction is not cured by a good one properly stating the law of the case, given at the instance of the same or another party to the action.
An instruction containing a mere abstract proposition of law not applicable to the facts proven is properly rejected by the trial court.
Additional Syllabus by Editorial Staff.
An instruction that there is no different rule for the jury to follow in weighing the testimony of the defendant than that of any other witness would disregard the interest, bias, and prejudice of defendant, always present in a criminal indictment, and would be misleading.
The exclusive possession and control of property recently stolen are circumstances tending to show guilt, which the jury may consider in connection with all the other circumstances and facts in proof.
In a prosecution for breaking and entering a car and stealing goods therefrom, evidence that the car bore the initials a waybill in evidence showing those initial letters, with testimony that they indicated that it was the property of that company, was sufficient to carry the ownership of the car to the jury.
Error to Circuit Court, Wood County.
Glen B Ringer was convicted of breaking and entering a railroad car etc., and he 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 confess 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...
To continue reading
Request your trial