State v. Robinson

• Citation: 145 S.E. 383
• Decision Date: 30 October 1928
• Docket Number: (No. 6258.)
• Parties: STATE. v. ROBINSON.
• Court: Supreme Court of West Virginia

145 S.E. 383

STATE.

v.ROBINSON.

(No. 6258.)

Supreme Court of Appeals of West Virginia.

Oct. 30, 1928.

(Syllabus by the Court.)

Error to Circuit Court, McDowell County.

Buster Robinson was convicted of larceny of an automobile, and he brings error. Reversed, verdict set aside, and new trial awarded.

Cecil H. Riley, of North Fork, for plaintiff in error.

Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

LIVELY, P. The defendant, Buster Robinson, obtained this writ from a judgment sentencing him to four years in the penitentiary upon conviction of the larceny of an automobile.

The first assignment of error is the failure of the court to sustain the defendant's demurrer to the indictment. The indictment charges the defendant with having stolen an automobile valued at $500, the property of one L. D. Westmoreland. It is contended that the description of the property alleged to have been stolen is vague and indefinite, because neither the serial number, the make, the capacity, nor license number of the car is stated. It probably would have been better practice to have at least described the make of the car, but the failure so to do does not render the indictment fatally defective. In State v. Bailey, 63 W. Va. 668, 60 S. E. 785, this court said:

"It is not necessary to the sufficiency of an indictment, charging larceny, to describe the stolen articles by reference to any mark of identification by which they can be distinguished from others of the same, or a similar, kind."

All that is necessary in an indictment for larceny is that the property alleged to have been stolen should be described with sufficient particularity to enable the court to determine that such property is the subject of larceny; to advise the accused with reasonable certainty of the charge he will be called upon to meet; and to enable the defendant to plead the judgment rendered thereon in bar of a subsequent prosecution. 36 C. J. § 268, p. 813. The demurrer to the indictment was properly overruled.

We cannot consider the defendant's second assignment of error relating to the refusal of the court to admit certain evidence offered by defendant, because, the rejected evidence not having been made the subject of a special bill of exceptions nor specified in the motion for a new trial, error predicated thereon will be treated as having been waived. Tuggle v. Belcher, 104 W. Va. 178, 139 S. E. 653; Roberts v. Lykins, 102 W. Va. 409, 135 S. E. 388.

The remaining assignment of error concerns the sufficiency of the evidence to sustain the verdict. It appears from the evidence that L. D. Westmoreland, the owner of the alleged stolen car (a 1927 Ford coupe), was a coal miner living at MeComas, W. Va. On August 13, 1927, he drove the car to Keystone, and visited that part of the town known as "Cinder Bottom, " a place of questionable reputation. He remained there a large part of that day and the following night. The evidence shows that during that time he wasconsiderably under the influence of liquor, to purchase which (and perhaps other things) he had borrowed $15 from a man by the name of Charles Smith. After carousing around the night of the 13th, and until the early hours of the next morning, Westmoreland decided that he would visit one or two nearby towns in an effort to raise the money he had borrowed from Smith. The prosecuting witness was so intoxicated that he was unable to drive the car himself, and, at Smith's suggestion, they went into a restaurant, where the defendant, Buster Robinson, was eating his breakfast. Westmoreland promised Robinson that he would pay him $5 if he would drive him and Smith to certain designated places. The evidence shows that the trip was made as planned, but that Westmoreland's...