State v. Spurr
| Decision Date | 13 October 1925 |
| Docket Number | 5205. |
| Citation | 130 S.E. 81,100 W.Va. 121 |
| Parties | STATE v. SPURR. |
| Court | West Virginia Supreme Court |
Submitted October 6, 1925.
Syllabus by the Court.
A person who has pleaded guilty to a felony charge, other than perjury, but not sentenced, may testify as a witness in a criminal prosecution, by leave of the court.
A confession or admission of an accomplice in a felony, made after the crime has been committed and not a part of the res gestæ, and not made in the presence of the accused on trial is not evidence against the accused; and it is error to permit the persons who heard the confession or admission to detail the same to the jury.
Where a party extends the cross-examination of a witness to facts and circumstances not connected with the matter testified to by him on direct examination, over objection of the other party, he makes the witness his own as to such facts and matters not falling within the legitimate scope of cross-examination.
Error to Circuit Court, Doddridge County.
Harry Spurr was convicted of breaking and entering a storehouse with intent to commit larceny, and of committing larceny, and he brings error. Judgment reversed, verdict set aside, and new trial awarded.
Law & McCue, of Clarksburg, and W. R. Brown, of West Union, for plaintiff in error.
Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.
LIVELY P.
Upon an indictment charging him with breaking and entering a storehouse of J. N. Markey, not a dwelling house or outhouse adjoining thereto or occupied therewith, with the intent to commit larceny, and of the commission of larceny of certain goods therein found, Harry Spurr, plaintiff in error, was found guilty by the jury and sentenced to the penitentiary for two years on April 11, 1924. From that judgment and sentence he prosecutes this writ.
Spurr was jointly indicted with Hupp Squires, Howard Bee, and Otis Yeater. Bee confessed, but it appears that no sentence was imposed upon him, except a recommitment to the reform school (from which institution he had been and then was on parole) as having violated his parole. Yeater was granted a separate trial. Spurr and Squires were tried jointly. Both were convicted. Spurr was 18 years old, Yeater 17, and Bee 17, at the time of trial. The age of Hupp Squires is not given. Evidently he was about the same age as the others, for they are all designated as "boys" in the record. On the morning after the crime, Cunningham, chief of police, suspecting Howard Bee, then on parole from the reform school, and with whom he had previously had experience, went to the latter's home, accompanied by Wilson, a member of the state constabulary, and took him to the courthouse, where he confessed to them that he had participated in the crime, and designated Spurr, Squires, and Yeater as participants and accomplices. He told them how the property was taken and where it was secreted, and it was found at that place.
Bee having confessed, and without being sentenced, testified for the state to the effect that he and the others implicated were at a poolroom that night, and from there went to Budd Spurr's plumbing shop where they remained until 1 o'clock. From there they proceeded to the store (Squires having previously proposed the venture to the witness), which they entered (excepting Yeater), put the stolen goods in suitcases, and concealed them under some fodder in a barn about 2 1/2 miles distant. He got home about 5 o'clock a. m.
Loyal Jack Saddler, who was in the Clarksburg jail awaiting trial on a charge of "white slavery" in the federal court, testified that, while in jail, Squires, who was in the same jail, told him the details of the crime, and that Spurr told him the same. Another witness summoned for the state, Earle Moore, who was in the jail, discredited Saddler, and his evidence is to the effect that Saddler was trying to get persons interested in the store which was robbed to go on his bond, with the intention of forfeiting it, thus escaping prosecution, by telling them that Spurr and Squires had admitted the robbery to him.
Witnesses Cunningham and Wilson, the officers to whom Bee had confessed, testified to the confession, and detailed what Bee had told them to the effect that he said that Spurr, Squires, and Yeater were with him when he entered the store. This part of their testimony was objected to on the ground that Spurr was not present; and the admission of this testimony forms one of the points of error complained of.
Otis Yeater said he was with Spurr, Squires, and Bee at Wolf's poolroom at about 11 o'clock p. m.; from there they went to the plumbing shop, where they remained until about 1:30 a. m.; from there they came up town, where he left them and went home. While at the shop the others said they were going to break into Markey's store and get some clothes.
The defendant, Harry Spurr, denied guilt. He admitted having seen Bee and Yeater at the poolroom, but denied being at the shop with them. He left the poolroom about 11 o'clock that night, and was talking to Robinson on the street when he met his brother and got in his car, Haskins being therein, and was driven home, where he went to bed and slept until morning, and knew nothing of the robbery until about 3 o'clock p. m. the next day, when his mother told him the officers had been at the house with a warrant for him charging him with complicity in the robbery. He immediately went to the officers to see about it, and submitted to arrest. The officers confirm that he came to them as stated. Wallace Spurr and Charles Haskins say that Harry Spurr and Robinson got in the car about 11 o'clock p. m., as detailed by Harry Spurr, and Harry Spurr was driven home, where he got out and went in. Robinson was carried further on to his home. Helen Spurr, the mother, says Harry came home about 11 o'clock that night and went to bed and remained there. She saw him in bed at 3:30 a. m. the next morning when she got up to cook breakfast for her boarders. Robinson and Coy Brown corroborate Harry Spurr's statement that he went home at 11 o'clock that night.
The defense is based upon the alibi, and the alibi is rather complete. The jury within its province found that the alibi did not out-weigh the state's evidence of the defendant Spurr's actual presence at and participation in the crime.
The errors relied upon are: (1) That Howard Bee was permitted to testify after his confession and before his sentence; (2) permitting Officers Cunningham and Wilson to detail their conversation with Howard Bee, in which conversation he implicated defendant as an accomplice in the crime, all in the absence of the prisoner; (3) cross-examination of Earle Moore on matters not pertinent to his evidence in chief, for the purpose of laying a foundation for contradiction of his evidence so adduced on cross-examination, and permitting the introduction of evidence tending to contradict him on the foundation so laid; and (4) giving instructions for the state, and amending instruction No. 1 offered by defendant. This last assignment of error is not mentioned in the argument, and has apparently been abandoned--therefore it will not be considered.
The first assignment is based on section 17, c. 152, Code 1923, which reads:
"Except where it is otherwise expressly provided, a person convicted of felony shall not be a witness, unless he has been pardoned or punished therefor, but a person convicted of felony and sentenced therefor, except it be for perjury, may by leave of the court, be examined as a witness in any criminal prosecution, though he has not been pardoned or punished therefor, but a person convicted of perjury shall not be a witness in any case, although he may have been pardoned or punished."
It is argued that while a felon who has been convicted and sentenced may be examined in a criminal prosecution by leave of court although he has not been pardoned or punished, yet a person convicted but not sentenced may not be a witness in a prosecution even by leave of court. It is difficult to perceive a plausible reason for allowing a person who has been convicted and sentenced to testify and refusing to receive testimony from one who has confessed or been found guilty by a verdict and not sentenced. Would his testimony be less credible in one case than in the other? The statute is in derogation of the common law, and must be strictly construed. As pointed out by the Attorney General, under the common law a person convicted of a heinous crime and sentenced could not testify, but he could testify after a verdict of guilty or an accepted plea of guilty and before sentence. 28 R.C.L. pp. 456, 457, § 43. The reason for the rule at common law that a convicted felon could not testify was that such person was deemed to be too corrupt morally to be trusted to speak the truth, and was insensible to the restrai ning force of an oath. It applied generally to those convicted of treason, felony, and the crimen falsi. Treason and almost all felonies were capital crimes, and those convicted of such crimes were considered as unworthy of belief in the courts.
1 Greenleaf on Ev. (16th Ed.) § 375.
So, at common law, unless sentence had been pronounced upon the felon, he could testify. The statute quoted has changed the common-law rule, except in cases of conviction for perjury and allows the felon to testify by leave of the court. We do not construe the statute...
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