State v. Stroud

• Decision Date: 17 September 1929
• Docket Number: 6279.
• Citation: 149 S.E. 674,107 W.Va. 591
• Parties: STATE v. STROUD.
• Court: West Virginia Supreme Court

149 S.E. 674

107 W.Va. 591

STATE v. STROUD.

No. 6279.

Supreme Court of Appeals of West Virginia.

September 17, 1929

Submitted September 10, 1929.

Syllabus by the Court.

An investigation of the cause, origin, and circumstances of the destruction of a dwelling house by fire, conducted and held by the state fire marshal, his deputy or assistant, under chapter 48A, Code, is a "legal examination" within the meaning and purpose of chapter 152, § 20, Code, which declares that, in a criminal prosecution other than for perjury, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination.

Error to Circuit Court, Raleigh County.

Paul Stroud was convicted of arson, and he brings error. Reversed verdict set aside, and new trial awarded.

Ashworth & Crouse, of Beckley, for plaintiff in error.

LIVELY J.

This writ is to a judgment sentencing the defendant, Paul Stroud to three years in the penitentiary upon his conviction on a charge of arson.

Defendant Stroud was indicted for feloniously burning a dwelling house of J. R. Abshire, on the 28th day of July, 1927, which house was located about one-half mile from the hard road between Beckley and Harper, in Raleigh county. The fire occurred about noon of that day while all the occupants of the dwelling were absent. Upon the trial, evidence was introduced which showed that the defendant was seen about one-half mile from the dwelling either just before or just after the burning. A short time before the fire he was seen going in that direction in a yellow automobile, and was also observed returning from the same direction not long after the burning began. The tracks of an automobile which corresponded with the tracks made by defendant's car were traced to within about three-quarters of a mile of the dwelling. It was also shown that some controversy existed between Stroud and the occupant of the burned building, concerning the removal of some property on the premises which was claimed, and possibly owned, by Stroud's mother. The other evidence against defendant, which was extremely damaging, consisted of what purports to be a confession made by defendant in writing before Howard M. Welcher, assistant state fire marshal, who conducted an examination to ascertain the cause of the fire. The taking of this alleged confession was testified to by Welcher, the stenographer who took it down, and a member of the state police who was present at the examination, and who afterwards, on the same day arrested defendant on a charge of arson. The alleged confession was in the form of answers to questions propounded by Welcher. All of this evidence was strenuously objected to and proper bills of exceptions were taken thereto.

The principal assignment of error is that this alleged confession and the evidence concerning its taking was not proper evidence and should have been excluded on motion of defendant, because...