48 W. Va. 115 | W. Va. | 1900
John G. Flannagan was indicted in the circuit court of Randolph County for unlawfully, feloniously, and burglariously breaking and entering the milk house of E. E. Hedrick, in said county, with intent the goods of him, the said Hedrick, therein being, feloniously and burglariously to take, steal, and carry awaj1-, which said milk house was then and there a building other than a dwelling house or out house adjoining thereto or occupied therewith, and did feloniously and burglariously then and there steal, take, and carry away five gallons of jam, of the value of seven dollars and fifty cents, three gallons of apple butter, of the value of three dollars, three gallons of jelly, of the value of six dollars, one ham of meat, of the value of three dollars, two dozen glass jars of blackberries, of ’the value of six dollars, and one bucket, of the value of fifty cents, in the whole amounting to the value of twenty-six dollars, of the goods and property of E. E. Hedrick, in the said building then being found, against the peace and dignity of the State. A second count is to tire same effect except' that the allegation is that said Flanagan “did unlawfully, feloni-ously, and burglariously enter, without breaking, the said milk house of him, the said E. E. Hedrick, in said coimly situate, with intent the property of him, the said E. E. Hedrick, therein being, then and there, feloniously and burglariously, to steal, take, and carry away,” etc., as in the first count. The defendant demurred to the indictment, and to each count thereof, which demurrer was overruled; and the defendant then moved the court to require the prosecuting attorney to elect as to which of said counts in said indictment he would try the prisoner on, — the prisoner contending that each count charged a separate offense,' — which motion was also overruled, to which rulings of the court defendant excepted; and the defendant pleaded not guilty; and a jury was impaneled, and, upon the evidence adduced, returned a verdict of “guilty as charged in the above indictment.” The defendant moved the court to set aside'the verdict and grant him a new trial on the ground that the same is contrary to the law and the evidence, and also moved in arrest of judgment, of which motions the court took time to consider; and on the 17th of October, 1899, the court overruled said several motions, and refused. to grant a new trial, and pronounced judgment upon said
The other assignments of error, as well as the bills of exceptions numbers one, two, three, and four, relate to what is claimed to be the admission of improper evidence over the objections of defendant, and are comprehended in and covered by assignment number live, based on bill of exceptions number five, viz. that the court erred in overruling “defendant’s motion to exclude the evidence of the State when the case was rested by the prosecuting attorney, — the evidence being wholly insufficient to sustain a verdict of guilty beyond a reasonable doubt,” — which assignment, and the sixth, which is based on bill of exceptions number six, that it was error to overrule defendant’s motion to set aside the verdict and grant him a new trial because it was contrary to the law and the evidence, are the only assignments and bills of exceptions cnat I deem it necessary to discuss, and they will be considered together.
It is shown by the evidence: That in the fall of 1897 Mary J. Hedrick, wife of E. E. Hedrick, put up some thirty cans of fruit, and some jelly and berries, with the help of her children, who picked the berries; she furnishing the sugar. That in the March following, Mr. and Mrs. Hedrick having some domestic trouble, she left home and went to Maryland. Mrs. Hedrick arranged with defendant to get the fruit and stuff she had put up, and ship it to her. She wrote a note to her daughter. Maggie to let defendant have the goods. Defendant came for the goods in the absence of Mr. Hedrick, and in the night. He went to the kitchen door and saw Maggie, who told him the milk house was open. ' Maggie üad a key to the milk house, and her brother had a key, also. The brother locked the milk house, and Maggie pn-locked it. Witness M. V. Bennett says: He had a talk with defendant, and told him Hedrick told witness he was going to Franklin, the county seat of Pendleton, and defendant remarked, “That is what I wanted to find out,” or what he wanted to know. Then, later in the evening (witness thinks, at Adam Roy’s house, where he was going to stay all night), defendant
Reversed.