State v. Simon
| Decision Date | 15 February 1949 |
| Docket Number | 10003. |
| Citation | 52 S.E.2d 725,132 W.Va. 322 |
| Parties | STATE v. SIMON. |
| Court | West Virginia Supreme Court |
1. Where an indictment contains three counts, and in the trial thereon the State is required to elect as to the count on which it relies for conviction, a general verdict of guilty as charged in the indictment will be treated as a verdict of guilty of the charge made in the count so relied upon.
2. 'The discretion of the trial court in ruling on the propriety of argument by counsel before the jury will not be interfered with by the appellate court, unless it appears that the rights of the complaining party have been prejudiced, or that manifest injustice resulted therefrom.' Pt. 3, syl., State v. Boggs, 103 W.Va. 641, 138 S.E. 321.
3. In a criminal case, where the defendant has exercised his right not to testify, statements of the prosecuting attorney in his argument of the case before the jury that there had been no denial of the testimony introduced by the State, without specific reference to the failure of the defendant to testify, does not come within the inhibition of Code, 57-3-6, which is that 'his failure to testify shall create no presumption against him, nor be the subject of any comment before the court or jury by any one'.
4. Where in a criminal case, there has been a jury verdict of guilty, followed by judgment thereon, and the imposition of a sentence of punishment, the trial court is without power after the adjournment of the term in which judgment was entered and sentence imposed, to set aside such verdict, judgment and sentence and grant a new trial. In such situation a defendant, to avoid such result, is restricted to an appellate procedure.
5. In a criminal case, where a defendant has been convicted of a crime by the verdict of a jury, followed by judgment thereon, and the imposition of a sentence of punishment and such defendant is thereafter required to testify in the trial of a person jointly charged with him for the same offense, and in the same indictment, he is not, under the provisions of Code, 57-5-2, or otherwise, made immune from punishment for the offense of which he had theretofore been convicted.
James H. Rowland, of Beckley, and H. E. Dillon, Jr., of Fayetteville, for plaintiff in error.
Ira J. Partlow, Atty. Gen., and W. Bryan Spillers, Asst. Atty. Gen., for defendant in error.
On March 17, 1947, in the Criminal Court of Raleigh County, an indictment was returned against W. A. Thornhill, Jr., William Henry Lilly and James Edward Simon, charging them with tampering with certain ballots cast in the general election held in said county on November 5, 1946. Said indictment was apparently based on the provisions of Article 7, Chapter 3 of the Code, especially sections 1 and 9 thereof. The defendant James Edward Simon, appeared on March 28, 1947, and interposed his demurrer to the said indictment, which demurrer was, on March 31 following, overruled. The demand of the said defendant for a separate trial was sustained by the court, and he entered his plea of not guilty to the said indictment, and the case was tried, as to him, the trial opening on said day. At the end of the introduction of the State's testimony, the State was required to elect upon which count of the indictment it would rely for conviction, and elected to so rely on the second count thereof. On April 4, 1947, the jury returned a verdict in the following language: 'We, the jury, find the defendant, James Edward Simon, guilty as charged in the within indictment.' On the same day a motion was made to set aside the said verdict and grant defendant a new trial, on the ground that the same was contrary to the law and evidence, and for reasons to be later assigned. On April 23, 1947, the said motions were renewed and grounds therefor assigned. On June 21, 1947, the motion to set aside the verdict was overruled, and the defendant was sentenced to confinement in the penitentiary of this State for a period of not less than one nor more than ten years. Objections were made to the action of the court in refusing to set aside the verdict, and in imposing sentence, and due and proper exceptions taken at the time. On refusal of a writ of error by the Circuit Court of Raleigh County, we granted such writ on September 29, 1947.
The first count in the indictment charges that the said defendant did:
'* * * unlawfully and feloniously open without breaking, break open and violate the seals and locks of certain ballot boxes, papers, envelopes and bags, the property of and in the prossession, custody and control of Harry Anderson, Clerk of the County Court of Raleigh County, West Virginia, and H. G. Farmer, J. J. Shrewsbury and D. B. Jarrell, Commissioners of said Court, and as such Ex-Officio the Board of Canvassers of election returns in said County in which said ballot boxes, papers, envelopes and bags there were ballots deposited at and after said election, which said ballots were cast by the qualified voters of said County at said election, they, the said W. A. Thornhill, Jr., William Henry Lilly and James Edward Simon, not being duly authorized by law so to do * * *.'
The third count of the said indictment alleged that the said defendant did: '* * * unlawfully and feloniously obtain possession of certain ballot boxes, papers, envelopes and bags' the property and in the possession of the same persons, and: 'did unlawfully, feloniously and fraudulently make certain erasures and alterations upon the tally sheets, poll books, list of voters and the election returns deposited therein, they, the said W. A. Thornhill, Jr., William Henry Lilly and James Edward Simon, not being duly authorized by law so to do * * *.'
The second count of the indictment, upon which the State relied for conviction, was in the words and figures following:
'And the Grand Jurors aforesaid, upon their oaths aforesaid, do further present that the said W. A. Thornhill, Jr., William Henry Lilly and James Edward Simon, on the 16th day of November, 1946, in the said County of Raleigh, and within twelve (12) months from and after the closing of the polls on General Election Day, November 5, 1946, did unlawfully and feloniously obtain possession of certain ballot boxes, papers, envelopes and bags, the property of and in possession, custody and control of Harry Anderson, Clerk of the County Court of Raleigh County, West Virginia, and H. G. Farmer, J. J. Shrewsbury and D. B. Jarrell, Commissioners of said Court, and as such Ex-Officio the Board of Canvassers of election returns in said County, in which said ballot boxes, papers, envelopes and bags there were ballots deposited at and after said election, which said ballots were cast by the qualified voters of said County at said election; and said W. A. Thornhill, Jr., William Henry Lilly and James Edward Simon did unlawfully and feloniously cancel, withhold and destroy said ballots, they, the said W. A. Thornhill, Jr., William Henry Lilly and James Edward Simon not being duly authorized by law so to do, against the peace and dignity of the State.'
The offense charged in the indictment was alleged to have been committed very early in the morning of the 16th day of November, 1946. Later, about 9 o'clock on the morning of said day the defendant, James Edward Simon, was arrested and taken to the office of the prosecuting attorney of said county, where, in the presence of the said prosecuting attorney, the sheriff of the county, certain police officers and others, he made two statements which were reduced to writing and signed by him in the presence of witnesses, which statements are relied upon by the State as a confession of his participation in the offense alleged in the said indictment. The first statement so made by him was amplified later on the same day, after defendant had consulted with the then sheriff of Raleigh County. On December 19, 1946, the said Simon made a further statement to Claude H. Vencill and Robert L. Harper, special agents of the Federal Bureau of Investigation, which statement closely and substantially corresponds to the statements made by him on November 16, 1946, aforesaid. There is ample testimony in the record that these statements were made by him freely and voluntarily, without any compulsion whatever, and without any promises of leniency or other consideration which would induce the defendant to make the same. We think the State has fully sustained the burden, which rested upon it in cases of this character, to show that the statements relied upon as confessions, were voluntarily made. All of the said statements, relied upon as confessions, were introduced as evidence before the jury over the objections of the defendant. The record discloses that the State relied in particular on the second of the two statements alleged to have been made by the defendant on November 16, and for the purpose of clarifying the case we think we are justified in quoting said statement in full, and the same is in the words and figures following:
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