State v. Ruben Cooper, (No. 7030)

• Decision Date: 03 November 1931
• Docket Number: (No. 7030)
• Citation: 111 W.Va. 255
• Court: West Virginia Supreme Court
• Parties: State v. Ruben Cooper

111 W.Va. 255

State

v.Ruben Cooper

(No. 7030)

Supreme Court of Appeals of West Virginia.

Submittd

October 27, 1931.

Decided November 3, 1931.

1. Indictment and Information

A general demurrer to an indictment containing more than one count, one of which is good, should be overruled.

2. Indictment and Information

Upon a general verdict of guilty on such an indictment, the sentence should be entered on the good count.

3. Evidence

A new trial will not be granted on the ground of insufficient evidence where the verdict is supported by substantial evidence.

Error to Circuit Court, Logan County.

Ruben Cooper was convicted of a criminal offense, and he

brings error

.Judgment affirmed.

Hager & Glenn, for plaintiff in error.

Howard B. Lee, Attorney General and B. A. Blessing, Assistant Attorney General, for the State.

Woods, Judge:

Ruben Cooper complains of a judgment of the circuit court of Logan County sentencing him to confinement in the penitentiary for a term of five years.

The indictment was in two counts. The first charged felonious entering without breaking of a certain store building of Tri-State Refining Company, the same not adjoining to or occupied with a dwelling house there situate, with intent to commit larceny and the actual taking of merchandise of the value of $50.00; the second, the larceny of five "tires" of the aforesaid value. The defendant interposed a general demurrer, which was overruled.

The second count, as pointed out by the defendant, is defective in its description of the property alleged to have been stolen. Even though this is an age of automobiles, it cannot be taken for granted that "tires" refers to automobile tires alone. Anable v. Com., 24 Graft. 563. The first count sufficiently charged an offense under section 13, chapter 145, Code 1923. The allegation therein of actual larceny not being necessary, but merely in aid of intent, need not be made with the same formality as a count for larceny itself. Slate v. McClung, 35 W. Va. 280; State v. Caddie, 35 W. Va. 73. There being one good count, the general demurrer was properly overruled. State v. McClung, supra; State v. Cartright, 20 W. Va. 32. And the verdict being general, it is deemed a conviction of the offense of entering and not for larceny. Stale v. McClung, supra; Speer's Case, 17 Graft. 570. Likewise, on a general demurrer, one good count is sufficient to support a verdict. Section 23, chapter 159, Code 1923.

The second assignment of error is that the state has failed to prove an entering without breaking, as alleged in the indictment. The evidence of the state is to the effect that there was a breaking and entering. Is this variance fatal? Breaking and entering, and entering without breaking, under the statute (sees. 12 and 13, chap. 145, Code 1923) are kin- dred offenses. While it might he a little more difficult to show a breaking, we are of opinion that the defendant cannot complain of such evidence, since the fact that there was a breaking and entering is sufficient to show an entering, which, when shown to have been done with the intent to commit larceny, establishes a prima facie case of the offense charged.

The defendant and one Leland Jones, after being apprehended in Mingo County, were arrainged before a justice in Logan County. At the preliminary hearing the tires, which were likewise found in Mingo County, were identified by, and returned to. Porter Lynn, the manager of the Tri-State Refining Company's service station. According to Lynn's testimony, the defendant and Jones had been around the service station a number of times during the two weeks immediately preceding the theft, and had bought oil and gas on various occasions. He also stated that both the defendant and Jones were in the tire room on the afternoon of June 29...