State v. Young

• Decision Date: 24 October 1950
• Docket Number: No. 10277,10277
• Citation: 61 S.E.2d 734,134 W.Va. 771
• Court: West Virginia Supreme Court
• Parties: STATE, v. YOUNG.

Page 734

61 S.E.2d 734

134 W.Va. 771

STATE, v. YOUNG.

No. 10277.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 13, 1950.

Decided Oct. 24, 1950.

Syllabus by the Court.

1. Under Code, 61-2-12, one who enters a home or place of business of another and makes a gesture indicating that he has in his possession a firearm or other deadly weapon, immediately orders the person or persons there in charge to take a certain position, remain there, and not follow him, and then takes physical possession of money or other things of value then on said premises and in the control of the person or persons in charge thereof, is guilty of armed robbery. The threat of the use of a firearm or other deadly weapon constitutes robbery by putting in fear.

2. In a criminal prosecution for armed robbery, while the burden of proving an alibi is on the accused, on account of its affirmative nature, yet this does not dispense with the necessity of the State's proving the actual presence of the accused at the time and place where the robbery was committed; and if, from the evidence, the jury has reasonable doubt of the presence of the accused at the time and place when and where the robbery was committed, they should find him not guilty.

3. In a criminal case, the weight and effect to be given to the testimony of witnesses is peculiarly within the province of the jury.

4. In a criminal case, where, under proper instructions, a jury, on conflicting evidence, returns a verdict finding the defendant guilty as charged in the indictment and such verdict is approved by the trial court, it will not be disturbed by this Court unless plainly wrong, or without any evidence to support it.

Watts, Poffenbarger & Bowles, Martin C. Bowles, Charleston, for plaintiff in error.

William C. Marland, Atty. Gen., George W. Stokes, Asst. Atty. Gen., Thaddeus D. Kauffelt, Sp. Asst. Atty. Gen., for defendant in error.

FOX, Judge.

On September 27, 1949, a grand jury attending the Intermediate Court of Kanawha County returned an indictment against Albert Young and Sigsbee Young for armed robbery, alleged to have been committed in and upon Mrs. George W. Jenkins in the month of July, 1949. The case came on for trial on November 1, 1949. No demurrer was interposed to the indictment. The defendants demanded separate trials, and the State elected to try Albert Young. He pleaded not guilty to the offense charged against him, and a trial was had on the said indictment and the plea thereto, resulting in a verdict of guilty. A motion to set aside said verdict on grounds assigned at the time was overruled, and the defendant was sentenced to confinement in the penitentiary of this State for a term of twenty-five years. A petition for writ of error to said judgment was filed in the Circuit Court of Kanawha County on February 25, 1950, and was denied on April 7, 1950, and to that judgment this writ of error was granted by this Court on May 8, 1950.

Mrs. George W. Jenkins was the victim of the robbery alleged in the indictment. She, with her son, was engaged in the feed business in an establishment located on Slack Street in the City of Charleston. Mrs. Jenkins testified that on Monday, July 18, 1949, a person entered her office, while she was alone therein, and ordered two sacks of feed. She was sitting at her desk in said office, and while proceeding to enter up a record of the order, and at a time when she was adding the State tax to the amount of said order, said person moved around to her left elbow, put his hand in his hip pocket, and ordered her to get back from the desk, and that when she glanced up in surprise he repeated 'Get back from the desk there and stand and not follow me.' She did as she was told, and got behind a refrigerator located in the office. When asked 'Were you afraid of him?' her reply was 'Well, naturally.' She stated that 'When he told me to get back and I looked up at him he had his hand in his pocket.' And when asked 'Had his hand been in his pocket before that time?' she replied 'I didn't notice it, I don't think so.' He made no statement that 'This is a stick-up' or anything of that kind. The robber went straight to the closed desk drawer and took out, without hesitation, the left top desk drawer that had the money in it and left the room. This desk contained between $600.00 and $700.00 in currency, and some checks, and the aggregate of the currency and checks taken was a little over $800.00. As he left the room, Mrs. Jenkins testified that she noticed a truck sitting outside, and that the robber went towards the truck, but she did not see him get into the same; nor did she secure the license number of the truck, and she did not know what kind of a truck it was. The truck was then driven in the direction of Elk River. On the trial of the case, Mrs. Jenkins positively identified that man that robbed her as being the defendant Albert Young. She also testified that she had the impression that she had been him at some time before that date, but of that she could not be sure.

Dennis Gaylor was introduced as a witness by the State and testified that he remembered the afternoon when the Jenkins Feed Store was robbed, and that he was working on the other side of the street from the office where the robbery occurred, in a warehouse used in the Jenkins feed business. He first noticed the truck when it was pulling out from the office and judged it was a Chevrolet truck, but could not say for sure; that it was a new truck; that when it left the office it was travelling at a good speed of from fifteen to twenty miles per hour, and travelled up Slack Street in the direction of the incinerator; that at this time Mrs. Jenkins called from the office and said someone had her money, and that it was the man in the truck that pulled out; that a Mr. Clay who was there at the time got in his automobile and followed the truck. The witness stated that he did not see how many persons were in the truck, and that he was unable to identify any person who may have been therein. Henry Clay was then introduced as as a witness for the State, and testified that he was on the feed store premises at the time of the robbery, and that it occurred about four forty-five in the afternoon; that after the robbery, the truck pulled out at high speed and went out the road, and thatMrs. Jenkins came out on the sidewalk in front of her store and said 'Stop that green truck, I have been robbed.' The witness stated that he didn't notice the truck in front of her store, but at the time she made her statement that the truck had gone five hundred feet from the Lido Club. He then ran and jumped into his automobile and tried to get out of the gate so he could get the license number of the truck, but on account of two or three trucks passing at the time, he was delayed in getting through the gate, and when he did, the truck was out of sight. He stated that he paid no attention to the truck when it passed the warehouse, but when Mrs. Jenkins hollered 'stop that green truck' there was a half-ton, pick-up truck in view, though all he could see of the truck was its rear end. It will be observed from the foregoing that Mrs. Jenkins was the only person who claims to be able to identify the person who robbed her, but it seems clear that there was a half-ton pick-up truck at and around the feed store premises at the time of and after the robbery, and that it travelled away from the place of the robbery at a high speed.

The defense interposed by the defendant is an alibi. He claims that he was at his home on Elk Two Mile Creek all of the day of July 18, 1949, the date when the robbery was committed. Albert Young testified to this effect and is corroborated by his wife, Garnet Virginia Young, and by George Nunley, Leon Skiles and Arthur McNeely. Young and his wife testified positively that he was at his home all of that day. George Nunley testified that he went to the home of Albert Young about four o'clock on the evening of July 18, 1949, and found Young there. Leon Skiles testified that he went to the Young home the same evening, remained there ten or fifteen minutes, left at 4:37 P.M., and that Albert Young was then at his home. Leon Skiles testified that when he arrived George Nunley was also there. Arthur McNeely merely passed Young's home and noted that he was at home, and that was in the afternoon about the time when the robbery occurred.

As stated above, on the trial of the case, Mrs. Jenkins positively identified Albert Young as the person who robber her. It is obvious, of course, that the identification of Young, and the contention of the defendant that he was at home all of the day of July 18, 1949, the date of the robbery, are linked together and must be considered together. This requires consideration of the reasonableness and credibility of the testimony of Mrs. Jenkins, as the same is corroborated by Gaylor and Clay, as well as the testimony of Young that he was home that day, and the testimony of the persons who tend to corroborate his statement. It appears that Young was arrested at his home on Elk Two Mile late in the evening of July 25, 1949, and that he was immediately taken by the arresting officers to the home of Mrs. Jenkins on Sissonville Road near Charleston. There is some conflict, but more confusion, as to what occurred when Young was taken to the home of Mrs. Jenkins on that occasion. On cross examination of Mrs. Jenkins by counsel for the defendant, referring to statements to the police as to the first time she saw Young after the robbery, this question was asked: 'Did not you tell them the first time you saw Albert Young that you could not be certain if he was the man or not?' to which she answered: 'No, no, I don't think I told them. I felt sure he was the man.' She was then asked: 'Mrs. Jenkins, I will ask you again if you did not tell those police officers that you could not and would not be certain at that time that Albert Young was the...