State v. Smith

• Decision Date: 10 February 1925
• Docket Number: (No. 5190.)
• Court: West Virginia Supreme Court
• Parties: STATE v. SMITH.

126 S.E. 703

STATE
v.
SMITH.

(No. 5190.)

Supreme Court of Appeals of West Virginia

Feb. 10, 1925.

(Syllabus by the Court.)

Error to Circuit Court, Raleigh County.

William Smith was convicted of receiving stolen goods, and he brings error. Reversed, indictment quashed, and accused discharged.

C. L. Lilly and A. P. Farley, both of Beck-ley, for plaintiff in error.

E. T. England, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

MILLER, J. Defendant was tried in the criminal court of Raleigh county, on an indictment charging that he "did feloniously receive and have two Winchester 16-guage repeating shot guns of the total value of $100.00 of the goods and chattels of the East Gulf Coal Company, a corporation, which said goods and chattels were lately before feloniously taken, stolen and carried away from the East Gulf Coal Company, a corporation, he the said William Smith, then and there well knowing the said goods and chat-

[126 S.E. 704]

tels to have been feloniously taken, stolen and carried away, " etc.

On the trial defendant was found guilty as charged in the indictment, and the judgment of the criminal court was that he be confined in the state penitentiary for a period of from two to ten years. His petition to the circuit court for a writ of error was denied, and to that judgment we awarded the present writ of error.

In his petition to this court defendant assigns the same grounds of error assigned in his petition to the circuit court, twenty-nine in number; but for some reason not appearing, his counsel have not appeared in this court, nor filed any brief or argument in support of the propositions presented by their petition. The attorney general has, however, filed his brief and argument in support of the judgment.

Of the grounds assigned for reversal of the judgment, the first is the overruling of defendant's demurrer and motion to quash the indictment. The indictment was evidently founded upon section 18 of chapter 145 of the Code, providing that:

"If any person buy or receive from another person, or aid in concealing, any stolen goods or other thing, knowing the same to have been stolen, he shall be deemed guilty of larceny thereof, and may be proceeded against, although the principal offender be not convicted."

It will be noted that the statute reads: "If any person buy or receive from another person." Does the indictment, by alleging that the defendant did feloniously "receive and have" the property alleged to have been stolen...