State v. Rollins
| Decision Date | 16 October 1956 |
| Docket Number | 10812,Nos. 10811,s. 10811 |
| Citation | 142 W.Va. 118,94 S.E.2d 527 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Charles Otis ROLLINS. STATE of West Virginia v. Herman BOGGESS. |
Syllabus by the Court.
In a prosecution for the crime of unarmed robbery, it is incumbent upon the state to prove beyond all reasonable doubt that money or property of value was feloniously and forcibly taken from the person of another, or in his presence, against his will by violence or by putting such person in fear.
Jackson Savage, Charleston, for plaintiffs in error.
John G. Fox, Atty. Gen., Angus E. Peyton, Asst. Atty. Gen., for defendants in error.
In these cases, writs of error and supersedeas were granted by this Court upon the separate petitions of Charles Otis Rollins and Herman Boggess, who were jointly indicted, tried and convicted of the crime of unarmed robbery in the Circuit Court of Putnam County, West Virginia. The defendant Rollins was sentenced to confinement in the penitentiary for an indeterminate sentence of from ten years to life, with a recommendation that he serve fifteen years; and the defendant Boggess was sentenced to a term in the penitentiary of from ten years to life, with the recommendation that he serve a term of ten years.
The complaining witness, Harley Saylor and the defendants met in Point Pleasant, West Virginia, in the afternoon of either the 9th or 11th day of May, 1955. The defendants had just been released from the Mason County jail. There was no bus service at that time between Point Pleasant and Charleston where they resided. The proof shows that Saylor and the defendants engaged in drinking beer at various places in Point Pleasant and their association resulted in an agreement, as claimed by the defendants, that Saylor would transport the defendants to Charleston for $2 and the delivery of some brick tile to him. Rollins gave him the $2.
They left Point Pleasant about 7 or 7:30 P.M., stopped at a liquor store and purchased two fifths of wine. In the meanwhile a man named Matheny who resided at or near Leon, West Virginia, joined them a short while before they left Point Pleasant, and the four men, in the truck driven by Saylor, proceeded to the home of Matheny. After leaving Point Pleasant, the defendants, Saylor and Matheny drank some of the wine during the trip to the residence of Matheny, as well as at Matheny's residence. The defendants and Saylor then traveled to Buffalo, West Virginia, the three being seated in the cab of the truck which Saylor was driving.
An argument ensued, apparently involving the question whether Saylor had taken the defendants as far as he wished or whether he would bring them on to Charleston. At any rate, a fight ensued just before which Saylor secreted the ignition keys to the motor vehicle. The defendants left Saylor in the vicinity of the motor vehicle, called a taxi, using a telephone at a beer establishment, after which they were transported to Charleston where the mother of Rollins paid the taxi driver $3, leaving a balance of $2 unpaid. The defendants testified that they had only $.25 when they arrived in Charleston. Saylor testified that in the fight in and alongside the truck near Buffalo, he was beaten and robbed by the defendants.
Saylor's testimony relative to the amount of money he had in his possession at the time of the fight is conflicting and uncertain. In answer to one question, he testified he had $14 or $15 when he left Point Pleasant with the defendants. On cross-examination however, he testified that he had a ten dollar bill, four one dollar bills and some change when he arrived in Point Pleasant, that while in Point Pleasant he bought some groceries, gasoline and beer.
On the day following the alleged robbery, Saylor returned to the point where the affray had occurred and found alongside the road and near the point where he was assaulted a five dollar bill, a one dollar bill and one cent. Saylor was unable to testify as to how much money he had when he left Point Pleasant, how much he had at the time of the assault, or how much, if any amount of money was taken from him by these defendants. The defendants deny taking any money or thing of value from Saylor.
It is stated by counsel for the defendants who presented the cases to this Court, that he did not represent the defendants in the trial court nor did he prepare the petitions for writs of error. The petitions found in the record assign some eleven points of error, but counsel states he thinks there is little or no technical error in such assignments, but he now assigns the following errors: (1) The refusal of the trial court to set aside the verdict and grant a new trial for the reason that the verdict is contrary to the law and evidence, (2) the trial court erred in permitting cross-examination of defendant Rollins concerning a conviction in the State of California described as a felony, whereas, in fact it was a misdemeanor, under the statutes of that State, (3) the giving of state's instruction number 3 over objection, (4) the imposition of sentences for armed robbery when the indictment and conviction were for unarmed robbery.
The gist of defendants' argument goes to one of the essential elements of the crime of robbery, the actual taking of money or property of value from Saylor. Counsel insists on this point that the evidence of the state is inadequate to sustain the verdict; and that the taking of money or property from the defendant was not established beyond a reasonable doubt, hence, the state having failed in that essential, the trial court should have directed a verdict of not guilty at the conclusion of the state's evidence or should have set aside the verdict and granted a new trial after the verdict was rendered.
It is contended by counsel that the giving of state's instruction number 3 was error, since under the evidence the same should have been confined to assault and battery or not guilty.
The state answers only those assignments of error raised by present counsel for the defendants and contends that there is no error shown by the record as to such assignments, (1) that where the evidence is conflicting, the jury is the sole judge of weight and credibility to be given the testimony of any witness, (2) that there is no serious question as to the right to cross-examine Rollins who testified in his own behalf relative to prior convictions so as to test his credibility, whether they be felonies or misdemeanors, (3) it is in the discretion of the court to fix terms of sentence within statutory limitations, (4) it is proper to instruct a jury on all crimes included in an indictment where there is evidence, though conflicting, to sustain the verdict.
The argument of defendants' counsel with reference to the taking of money or property from the possession of the prosecuting witness calls for inquiry into the essentials of the crime of robbery. It is to be noted that Saylor is the only witness who testified for the state as to whether money or property was taken from him on the occasion the defendants assaulted him. In State v. Hackle, 110 W.Va. 485, 489, 158 S.E. 708, 710, the Court states that: 'Perhaps the best definition is that stated...
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...with the intent to permanently deprive the owner of it. See, e.g., State v. Ferguson, W.Va., 285 S.E.2d 448 (1981); State v. Rollins, 142 W.Va. 118, 94 S.E.2d 527 (1956); State v. Morris, 96 W.Va. 291, 122 S.E. 914 (1924); State v. McCoy, 63 W.Va. 69, 59 S.E. 758 From a historical standpoin......
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