State v. Wooldridge, No. 9819.

CourtSupreme Court of West Virginia
Writing for the CourtFOX
Citation40 S.E.2d. 899
PartiesSTATE. v. WOOLDRIDGE et al.
Docket NumberNo. 9819.
Decision Date21 December 1946

40 S.E.2d. 899

STATE.
v.
WOOLDRIDGE et al.

No. 9819.

Supreme Court of Appeals of West Virginia.

Dec. 21, 1946.


Dissenting Opinion Jan. 18, 1947.

[40 S.E.2d. 900]

[COPYRIGHT MATERIAL OMITTED]

[40 S.E.2d. 901]
Syllabus by the Court.

1. In the trial of a criminal case, the direction of the trial judge, taken down in shorthand by the court reporter, an officer of the court, afterwards transcribed by him, and made a part of the record, will serve as the entry on the record or memorandum in writing, required to warrant the entry of a nunc pro tunc order, carrying into effect the direction aforesaid.

2. To warrant a change of venue in a criminal case, there must be a showing of good cause therefor, the burden of which rests upon defendant, the only person who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist at the time application for a change of venue is made. Whether, on the showing made, a change of venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon will not be disturbed, unless it clearly appears that the discretion aforesaid has been abused.

3. In the trial of a criminal case, involving an alleged unlawful assemblage, originating in a dispute between two labor unions, whose membership consists of employees of a particular industrial enterprise, and which dispute concerns the right to represent the workers of said enterprise in matters relating to collective bargaining, a juror, otherwise qualified, is not subject to challenge for cause merely because he is an employee of the industrial enterprise aforesaid.

4. While photographs may, as a general rule, be introduced in evidence to depict scenes material to some issue therein, whether a particular photograph, or groups of photographs, should be admitted in evidence, rests in the sound discretion of the trial court; and its rulings thereon will be upheld unless there is a clear showing that its discretion has been abused.

5. Where, in the trial of a criminal case, the number of people at a particular location is considered material, the action of the trial court in refusing to admit photographs representing partial groups of those present, and not the entire scene, is not error.

6. In a criminal case, where the evidence is clearly insufficient to establish, beyond all reasonable doubt, the charge alleged against the defendant in the indictment, the verdict of a jury, finding defendant guilty, will be set aside as plainly wrong, the judgment based thereon reversed, and a new trial awarded.

KENNA, President, dissenting.

Error to Circuit Court, Hancock County.

George Wooldridge and others were convicted of unlawful assembly and they bring error.

Judgment reversed and verdict set aside and new trial awarded.

Robert J. Riley and James A. Byrum, both of Wheeling, and M. E. Boiarsky, of Charleston, for plaintiffs in error.

Ira J. Partlow, Atty. Gen., Ralph M. Hiner, Asst. Atty. Gen, and Eston B. Stephenson, Sp. Asst. Atty. Gen, for defendant in error.

[40 S.E.2d. 902]

FOX, Judge.

The defendants George Wooldridge, Alexander Bowie, Ben Kaminsky, Stanley S. Socha, Jack Givens, Harry Givens, Joseph Stafford, Laddie Birkhimer, Walter Pfiller, Harvey Hall, Daniel Badis, Steve Bartek, Anthony Getsinger, Jr., John Cencarik and LeMar Cook, were jointly indicted by a grand jury of Hancock County on April 11, 1944. The indictment was based on the provisions of Code, 61-6-1, which reads:

"All judges and justices may suppress riots, routs and unlawful assemblages within their jurisdiction. And it shall be the duty of each of them to go among, or as near as may be with safety, to persons riotously, tumultuously, or unlawfully assembled, and in the name of the law command them to disperse; and if they shall not thereupon immediately and peaceably disperse, such judge or justice giving the command, and any other present, shall command the assistance of all persons present, and of the sheriff of the county, with his posse if need be, in arresting and securing those so assembled. If any person present, on being required to give his assistance, depart, or fail to obey, he shall be deemed a rioter."

The penalty prescribed for riots, routs and unlawful assemblages is prescribed in Code, 61-6-6, which reads as follows:

"If any person engaged in a riot, rout or unlawful assemblage, pull down or destroy, in whole or in part, any dwelling house, courthouse, jail, prison, asylum, hospital, school or college building, or any public building of any character, or assist therein, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than one nor more than ten years; and though no such building be injured, every rioter, and every person unlawfully or tumultuously assembled, shall be guilty of a misdemeanor, and, upon conviction, shall be confined in jail not more than one year and fined not exceeding five hundred dollars."

Omitting the names of the defendants, other than George Wooldridge, the indictment returned by the grand jury is in the language following: "The Grand Jurors of the State of West Virginia, in and for the body of the county of Hancock, upon their oaths present that, on the 30th day of March, 1944, in the said county of Hancock, George Wooldridge, * * * did unlawfully assemble together to disturb the peace, and, being so unlawfully assembled, did then and there unlawfully make a great noise, tumult and disturbance, and did then and there unlawfully remain assembled together and continue to make a great noise, tumult and disturbance, for a long space of time, to the great disturbance of other persons then and there lawfully being and passing along; and that the said George Wooldridge, * * * being then and there unlawfully assembled and unlawfully making a great noise, tumult and disturbance, were then and there lawfully commanded by Norman D. Ferrari, a Justice of the Peace for said county of Hancock, to immediately and peaceably disperse; but that the said George Wooldridge * * * after having been so lawfully commanded to immediately and peaceably disperse, unlawfully and wilfully failed and refused to do so against the peace and dignity of the State."

There was no attack on the indictment, and on the day it was returned defendants appeared in open court, waived arraignment, and entered their plea of not guilty. On their motion further proceedings on the indictment were continued to April 24, 1944, on which day the defendants filed their petition for a change of venue, the hearing on which was continued to September 12, 1944, and from that date to September IS, following, when said motion was renewed. On December 2, 1944, the State filed its demurrer to the petition filed by the defendants with their motion for a change of venue, which demurrer was on that day sustained and said petition dismissed. It appears that on April 24, September 15, October 2, and December 2, and perhaps on other dates in the year 1944, proceedings were had on the motion and petition for a change of venue, including arguments on the demurrer aforesaid, affidavits, exhibits, consisting of newspaper clippings and other documents, all made a part of the record. The trial judge filed a memorandum opinion on this question, made a part of the record, on dates which do not always corres-

[40 S.E.2d. 903]

pond with the dates when orders were entered carrying such opinions into effect.

The trial began on January 24, 1945, and the motion for a change of venue was renewed on that date, and again overruled A jury was impanelled, in the process of which there was a prolonged controversy as to the propriety of permitting certain persons to qualify as jurors. The trial continued for several days, with the usual contentions as to the admission and refusal to admit as evidence certain testimony offered. At the end of the taking of testimony, there was a motion by the defendants, in chambers, for a mistrial, based on the various contentions made by the defendants before and during the trial, and which the trial judge had denied, which motion was overruled. There was also a motion by defendants for a directed verdict in their favor, which was likewise overruled. The defendants then offered various instructions, which will be dealt with in detail later in this opinion, all of which were refused, and in lieu thereof the trial judge gave a general charge. On February 1, 1945, the jury returned a verdict of guilty as charged in the indictment, as to all of the defendants. Immediately the defendants made a motion to set aside the verdict and for a new trial, and also a motion in arrest of judgment. On February 27, 1945, the trial judge filed a written opinion, made a part of the record, overruling these motions, which ruling was made effective by order entered in the case on April 11, 1945, and judgment on the verdict aforesaid was entered, and sentences imposed.on the defendants on that day. Each of the defendants, Daniel Vadis, Steve Bartek, Anthony Getsinger, Jr., John Cercarik, and LeMar Cook was sentenced to confinement in the county jail of Hancock County for a period of sixty days, and to pay a fine of one hundred dollars; and each of the other ten defendants was sentenced to confinement in the same jail for a period of thirty days, and to pay a fine of fifty dollars. All of the defendants were assessed with the costs of the prosecution. The reason for the disparity in the sentences will later appear.

It should be stated at this point that at all stages of the trial, and in the preliminary motions and proceedings leading thereto, the defendants, individually and collectively, had saved to them by their counsel, the benefit of all alleged errors of the trial court, through objections, specific where necessary, and by exceptions duly and properly taken at the time.

On January 22, 1946, on the joint petition of the defendants, we granted this writ of error and supersedeas to the judgment...

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57 practice notes
  • State v. McFarland, No. 16011
    • United States
    • Supreme Court of West Virginia
    • June 18, 1985
    ...unless it clearly appears that the discretion aforesaid has been abused." Point 2, syllabus, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).' Syllabus Point 1, State v. Sette, W.Va. , 242 S.E.2d 464 (1978)." Syl. pt. 1, State v. Zaccagnini, 172 W.Va. 491, 308 S.E.2d 131 3. "It is ......
  • State v. Blevins, No. 11–1014.
    • United States
    • Supreme Court of West Virginia
    • May 20, 2013
    ...be disturbed, unless it clearly appears that the discretion aforesaid has been abused.’ Syl. pt. 2, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).” Syl. Pt. 2, State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983). 6. “ ‘Where a person voluntarily and knowingly consents to a se......
  • State v. Bennett, No. 16360
    • United States
    • Supreme Court of West Virginia
    • September 12, 1985
    ...S.E.2d 252 (1966); State v. Loveless, 140 W.Va. 875, 880-81, 87 S.E.2d 273, 277 (1955); syl. pt. 2, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 Finally, the appellant contends that the indictment was insufficient to charge him with the offense of murder of the first degree. However, t......
  • White v. Lock, No. 16401
    • United States
    • Supreme Court of West Virginia
    • June 26, 1985
    ...that a potential juror and a party have a common employer is not a prima facie disqualification. See State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1947). See also Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961). The appellee's employer had no interest, pecuniary or otherwise......
  • Request a trial to view additional results
57 cases
  • State v. McFarland, No. 16011
    • United States
    • Supreme Court of West Virginia
    • June 18, 1985
    ...unless it clearly appears that the discretion aforesaid has been abused." Point 2, syllabus, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).' Syllabus Point 1, State v. Sette, W.Va. , 242 S.E.2d 464 (1978)." Syl. pt. 1, State v. Zaccagnini, 172 W.Va. 491, 308 S.E.2d 131 3. "It is ......
  • State v. Blevins, No. 11–1014.
    • United States
    • Supreme Court of West Virginia
    • May 20, 2013
    ...be disturbed, unless it clearly appears that the discretion aforesaid has been abused.’ Syl. pt. 2, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).” Syl. Pt. 2, State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983). 6. “ ‘Where a person voluntarily and knowingly consents to a se......
  • State v. Bennett, No. 16360
    • United States
    • Supreme Court of West Virginia
    • September 12, 1985
    ...S.E.2d 252 (1966); State v. Loveless, 140 W.Va. 875, 880-81, 87 S.E.2d 273, 277 (1955); syl. pt. 2, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 Finally, the appellant contends that the indictment was insufficient to charge him with the offense of murder of the first degree. However, t......
  • White v. Lock, No. 16401
    • United States
    • Supreme Court of West Virginia
    • June 26, 1985
    ...that a potential juror and a party have a common employer is not a prima facie disqualification. See State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1947). See also Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961). The appellee's employer had no interest, pecuniary or otherwise......
  • Request a trial to view additional results

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