State v. Varner

• Decision Date: 25 May 1948
• Docket Number: 9990.
• Citation: 48 S.E.2d 171,131 W.Va. 459
• Parties: STATE v. VARNER.
• Court: West Virginia Supreme Court

48 S.E.2d 171

131 W.Va. 459

STATE v. VARNER.

No. 9990.

Supreme Court of Appeals of West Virginia.

May 25, 1948

Syllabus by the Court.

1. In a criminal case, where within sixty days from the date of the judgment and sentence of the defendant, an order is entered which extends the period of a stay of the execution of the said judgment formerly granted, 'in which to make preparation for application to the Supreme Court of Appeals for a writ of error and within which to have the record made up and a transcript of the evidence and proceedings taken and had at the trial in this case', does not operate to extend the time provided by Code, 56-6-35, 36, within which a trial judge may properly sign bills of exception, or, in lieu thereof, a certificate, incorporating the evidence and proceedings of a trial had before him.

2. 'An indictment charging, in separate counts, different offenses of the same general character, manifestly for the purpose of meeting the different phases of the evidence should not be quashed for misjoinder of offenses, nor should the prosecutor be required to elect on which count he will proceed to trial.' State v. Cutlip, W.Va. 46 S.E.2d 454.

3. 'An indictment may allege burglary and larceny in the same count, and likewise may join charges of breaking and entering and larceny in the same count.' State v. Cutlip, W.Va. 46 S.E.2d 454.

Kelcel M. Ross, of Buckhannon, for plaintiff in error.

Ira J. Partlow, Atty. Gen., and J. Chandler Curd, Asst. Atty Gen., for defendant in error.

FOX Judge.

Robert L. Varner, who prosecutes this writ of error, was indicted in the Circuit Court of Upshur County on April 15, 1947. The indictment charged him with burglary, and contains two counts. The first count charged him with feloniously and burglariously breaking and entering a certain store house belonging to Nelle Smith; the second count charged him with feloniously and burglariously entering said premises without breaking. Each count charged the defendant with the theft of certain goods and chattels, the property of the said Nelle Smith. On April 16, 1947, and at the regular April Term of said court, defendant demurred to said indictment, and moved to quash same, on the following grounds: (1) that the indictment containing two counts each count alleged a separate, distinct offense; (2) that each count alleged and charged the defendant with both the crime of burglary punishable as for a felony, and with petit larceny, punishable as for a misdemeanor; and (3) that the indictment was insufficient for the reason that the time of the commission of the offenses was not properly alleged. The demurrer was overruled and the case set for trial. On the trial the defendant was arraigned, entered his plea of not guilty, and a jury was impaneled. Before any evidence was presented, defendant moved the court to require the State to elect on which count of the indictment the State would rely for conviction, which motion was overruled. The evidence having been heard and the jury instructed, the jury returned a verdict of guilty as charged in the second count of the indictment, and not guilty as to the offense charged in the first count thereof. A motion to set aside the verdict and grant a new trial was overruled. On April 28, 1947, and after the judgment had been entered on the verdict, which was that of confinement in the penitentiary for a term of from one to ten years, with the recommendation that the period of confinement be for one year, the defendant 'then moved the court for a stay of ninety days to allow the said defendant, Robert L. Varner, to apply to the Supreme Court of Appeals of this State for a writ of error in said case, which motion the court sustained in part, and the said Robert L. Varner is given a stay of sixty days in which to apply for said writ of error, and in which to make up the record in said cause'. Later, on June 27, 1947, an order was entered granting the defendant an additional stay and extension of forty-five days in which 'to make preparation for application to the Supreme Court of Appeals for a writ of error and within which to have the record made up and a transcript of the evidence and proceedings taken and had at the trial in this case'. On July 23, 1947, the defendant procured the signing of bills of exception, and on September 8, 1947 we granted this writ of error and supersedeas to the judgment aforesaid, entered on April 28, 1947.

From the foregoing it will be apparent that the bills of exception, being signed on July 23, 1947, were not signed within the sixty days provided by statute for the signing thereof, it appearing from the record before the Court that the April, 1947 term, of the Circuit Court of Upshur County, at which the judgment aforesaid was entered, was finally adjourned on the 8th day of May, 1947.

The errors assigned by the defendant are: (1) that the court erred in overruling the defendant's motion to postpone said trial and for continuance thereof; (2) the admission, over defendant's objection, of certain alleged incompetent, improper and irrelevant evidence; (3) overruling of defendant's demurrer to the indictment and his motion to quash the same; (4) the giving, over the defendant's objection, of State's Instructions Nos. 3, 4, 7, 11, 12, 14, 15 and 17; (5) the refusal of the court to set aside the verdict, and in not arresting judgment on the verdict on the grounds aforesaid; (6) the refusal of the court to set aside the verdict because it was contrary to the law and the evidence.

Certain of the errors assigned require consideration of the evidence taken on the trial. The State has appeared on the hearing on this writ of error, and filed its written motion that the writ of error herein be dismissed as improvidently awarded on the ground that the bills of exception were not...