2 S.E.2d 257 | W. Va. | 1939
Lead Opinion
Bernard Belcher was indicted together with George A. Tyree and Leon Steele in the Intermediate Court of Kanawha County for having violated the provisions of Code,
There are two grounds of assigned error: First, that it constituted error for the court to give state's instruction number one; and second, that it was error to overrule the defendant's motion to set aside the verdict and award a new trial because of the insufficiency of the prosecution's evidence.
We are of the opinion that the state's proof is adequate. From it the jury would have been justified in finding as follows: the three young men were on terms of comparative intimacy and they met on Reynolds Street in "East Charleston" at the Reynolds Street showground at approximately nine o'clock in the evening: there they remained until in the neighborhood of midnight, at which time they together decided to cross Elk River, break into a store room and take therefrom "beer or just anything"; they crossed the river upon the Washington Street bridge, and continued westward on Washington Street until they reached Watts Street, where they turned to the right, or north, going in that direction until they reached the tracks of the New York Central Railroad, upon which they turned west and continued until they were near the oblique intersection of West Washington Street and the New York Central right of way; at this point, they observed a barrel sitting under an open transom in a backdoor entrance of the triangular shaped store room of Cunningham, and the proof is clearly indicative that they at once reached the joint conclusion that entering Cunningham's store room would be a comparatively simple way of following out the plan formulated when they were together on Reynolds Street. A box was placed *172 upon the barrel and Tyree was assisted to climb upon it and go through the transom. According to Tyree's testimony, he intended to hand out through the window to the other two, beer or whatever else he found in the store room. The approach of a night watchman alarmed Belcher and Steele, who left without entering, and resulted in officers going into the store room and placing Tyree under arrest. Belcher and Steele were thereafter arrested.
It is pointed out by attorneys for the defendant that the state has been unable to show that there was any verbal understanding and agreement that the three defendants should break and enter Cunningham's store room. We do not think this is required. When the commission of a felony is being undertaken with the consequence that some offense not anticipated nor intended arises out of the effort to carry out the original plan the criminal intent is attributable to the unintended conduct of the accused. State v. Wisman,
The instruction which it is contended by plaintiff in error misled the jury reads as follows:
"The Court instructs the jury that if you believe from the evidence in this case beyond all reasonable doubt, that George Tyree either broke into and entered or entered without breaking the storeroom of Frank Cunningham, and that at the time he, the said George Tyree entered the said storeroom, the defendant, Bernard Belcher was present, aiding and assisting the said George Tyree to do and commit the said entering or was *173 acting as a lookout, and that the said breaking and entering or entering without breaking was a concerted action upon the part of George Tyree, Leon Steele and Bernard Belcher for the purpose of taking away beer or any other property found in the said store room, then you should find the defendant, Bernard Belcher, guilty as charged in the indictment, even though you may further find that the said Bernard Belcher did not actually assist Tyree in entering, and did not himself enter the said store room."
We are of the opinion that the giving of this instruction constituted prejudicial error and likely resulted in the jury being misled for two reasons: First, because in order to constitute the felony defined by Code,
For the foregoing reasons, we are of the opinion that the judgments of the Circuit and the Intermediate Courts of Kanawha County should be reversed, the verdict of the jury set aside and the plaintiff in error awarded a new trial.
There is, however, obvious upon the face of the record a further question not mentioned in the brief of either the state or the plaintiff in error. There were no specific objections to the giving of the state's instruction complained of. Paragraph (e) of Rule VI of the Rules of Pleading, Practice and Procedure promulgated by this Court (116 W. Va. lxiii) dealing with instructions, provides that "specific grounds of objection only will be considered." Accepting the verbatim and strict construction of this rule, it is at all times applicable to both civil and criminal cases. This Court has heretofore held in a number of civil cases that it will not entertain an assignment of error based upon an allegedly erroneous instruction unless the ground of objection was specifically called to the attention of the trial court. Rice v. BuildersMaterial Co.,
Reversed and remanded.
Dissenting Opinion
I respectfully dissent from the ruling of the majority in this case.
The evidence was such as to warrant the verdict of the jury. The instruction, the giving of which is made the basis of the court's ruling, was not specifically objected to, as required by paragraph (e) of Rule VI of the Rules of Pleading, Practice and Procedure, 116 W. Va. lxiii. It is held by the majority that this rule does not apply to criminal cases, and to this I cannot agree.
The rule in question reads as follows:
"All instructions to juries shall be reduced to writing and a copy presented to opposing counsel at the conclusion of the evidence. The Court will instruct the jury prior to argument. Supplementary instructions may be given later. Objections, if any, to each instruction shall be made when the same is offered; specific grounds of objection only will be considered."
I see nothing in the language employed to justify the holding that its application is limited to civil cases, and so long as the rule is allowed to exist, it should be applied to all cases tried before a jury. While we have applied the rule with strictness in civil cases, we have recognized that in extreme cases its rigidity should be relaxed to avoid injustice.Hale v. McGinley,
I would affirm the judgment of the court below, and I am authorized to state that Judge Hatcher concurs in this dissent.