State v. Smith, No. 13139

CourtSupreme Court of West Virginia
Writing for the CourtCARRIGAN
Citation193 S.E.2d 550,156 W.Va. 385
PartiesSTATE of West Virginia v. Larry Eugene SMITH.
Decision Date19 December 1972
Docket NumberNo. 13139

Page 550

193 S.E.2d 550
156 W.Va. 385
STATE of West Virginia
v.
Larry Eugene SMITH.
No. 13139.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 20, 1972.
Decided Dec. 19, 1972.

Page 551

Syllabus by the Court

1. Except where authorized by law as incident to a lawful arrest, any search of a person or his dwelling on mere suspicion and the seizure of any article found as a result thereof, without an arrest warrant or a search warrant, is an unlawful search and seizure in violation of Section 6, Article 3 of the Constitution of West Virginia.

2. 'In this jurisdiction where there is competent evidence tending to support a pertinent theory of a case, it is error for the trial court to refuse a proper instruction, presenting such theory, when so requested.' Syllabus, Point 4, State v. Hayes, 136 W.Va. 199 (67 S.E.2d 9).

3. A person charged with possession of an illegal drug should be permitted to examine the alleged illegal drug under proper supervision and control.

4. Where the circumstances show that there is a question as to the unanimity of a jury verdict, the jury should be polled if a request is timely made.

5. Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial

Page 552

prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.

[156 W.Va. 386] Wilson, Frame & Rowe, Clark B. Frame, Darwin F. Johnson, Morgantown, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Willard A. Sullivan, William R. Wooton, Asst. Attys. Gen., Charleston, for defendant in error.

CARRIGAN, Judge:

The appellant, Larry Eugene Smith, was found guilty after trial in the Circuit Court of Monongalia County upon an indictment charging him with possession of 'a narcotic drug, Cannabis, commonly known as Marijuana, in violation of W.Va. Code Ch. 16, Art. 8A, Sec. 2 (Michie 1966).' This Court granted an appeal to review the numerous assignments of error alleged to have been committed in his trial and conviction.

Larry Wildman, a West Virginia State Trooper, acting as an undercover agent, hereinafter referred to as such, had been on the West Virginia University campus for approximately six months investigating narcotics. During this time he dressed in casual clothes, let his hair grow, had on occasions purchased and smoked marijuana and had endeavored to infiltrate into groups involved in drug practices. He had not reported or disclosed his investigation to the university officials.

Larry Eugene Smith, the defendant, lived at 45 Beechhurst Avenue, Morgantown, together with three other boys, one being Sam McCormick. Defendant was twenty years of age, not then attending school, but having attended Fairmont College one and one-half years. He was 1--A in the draft call, was employed on a part-time basis and was attempting to get regular employment.

Early on the evening of January 18, 1971, the undercover agent had gone to defendant's residence and had attempted to buy marijuana from this defendant, but defendant said: 'I told him we didn't have any.' Around 2:00 or 2:30 a.m., January 19, 1971, defendant answered a knock at the door, and seeing the undercover agent wearing his disguise, he having already entered a closed-in porch, the [156 W.Va. 387] door of which was always unlocked, admitted the undercover agent to the house. Upon entry the undercover agent began shouting in an excited manner that several places were being raided in Morgantown, and that he desired to see Sam McCormick. The undercover agent's express purpose for seeking entrance to the house was to serve an arrest warrant for Sam McCormick, although this purpose was not disclosed by him to the defendant. Defendant told him Sam was upstairs asleep. The undercover agent called for Sam and continued in an excited manner to shout that other places in Morgantown were being 'busted,' and stated: 'If you've got anything in the house, for God's sake, get it out.' The undercover agent testified that defendant thereupon went to the adjoining room and returned with a bowl, which was later found to contain various kinds of pills, and alleged marijuana, and that he said: 'This is all the dope we got.' At this moment two troopers, not in uniform, who had accompanied the undercover agent and were participating in the events, came through the door and into the room or hallway where defendant and the undercover agent were standing. The undercover agent testified that defendant then 'jumped into me' dropping the...

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112 practice notes
  • EXECUTIVE RISK INDEMNITY, INC. v. Charleston Area Medical Center, Inc., Civil Action No. 2:08-cv-00810.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • July 30, 2009
    ...of this declaratory judgment action is too speculative to be recoverable damages for breach of contract. See Commonwealth Tire Co., 193 S.E.2d at 550. However, because I have found that Vandalia has alleged a breach of a contractual duty by ERC, then I am permitted to infer that Vandalia ha......
  • State v. Thomas, No. 13358
    • United States
    • Supreme Court of West Virginia
    • March 19, 1974
    ...search and seizure in violation of Section 6, Article 3 of the Constitution of West Virginia.' Syllabus Point 1, State v. Smith, W.Va., 193 S.E.2d 550 6. Evidence obtained as a result of a search incident to an unlawful arrest cannot be introduced against the accused upon his trial. 7. The ......
  • Ault v. Waid, Civil Action No. 2:07cv88.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • September 16, 2009
    ...conviction should be set aside, even though any one of such errors standing alone would be harmless error.' Syl. Pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972) The only error committed in the Petitioner's case, pretrial, during trial, or post trial, was his attorney's mistake i......
  • State v. Bowling, No. 11–1674.
    • United States
    • Supreme Court of West Virginia
    • October 11, 2013
    ...should be set aside, even though any one of such errors standing alone would be harmless error.Syllabus Point 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972). In addition, the trial court held a pre-trial hearing to consider Rule 404(b) bad character evidence in open court, with the......
  • Request a trial to view additional results
111 cases
  • EXECUTIVE RISK INDEMNITY, INC. v. Charleston Area Medical Center, Inc., Civil Action No. 2:08-cv-00810.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • July 30, 2009
    ...of this declaratory judgment action is too speculative to be recoverable damages for breach of contract. See Commonwealth Tire Co., 193 S.E.2d at 550. However, because I have found that Vandalia has alleged a breach of a contractual duty by ERC, then I am permitted to infer that Vandalia ha......
  • State v. Thomas, No. 13358
    • United States
    • Supreme Court of West Virginia
    • March 19, 1974
    ...search and seizure in violation of Section 6, Article 3 of the Constitution of West Virginia.' Syllabus Point 1, State v. Smith, W.Va., 193 S.E.2d 550 6. Evidence obtained as a result of a search incident to an unlawful arrest cannot be introduced against the accused upon his trial. 7. The ......
  • Ault v. Waid, Civil Action No. 2:07cv88.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • September 16, 2009
    ...conviction should be set aside, even though any one of such errors standing alone would be harmless error.' Syl. Pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972) The only error committed in the Petitioner's case, pretrial, during trial, or post trial, was his attorney's mistake i......
  • State v. Bowling, No. 11–1674.
    • United States
    • Supreme Court of West Virginia
    • October 11, 2013
    ...should be set aside, even though any one of such errors standing alone would be harmless error.Syllabus Point 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972). In addition, the trial court held a pre-trial hearing to consider Rule 404(b) bad character evidence in open court, with the......
  • Request a trial to view additional results

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