*1 364
Bаnk, 144 W. E. that such action 346, 109 649; Va. S. 2d Wade, of law under Turner v. them denied due process S. Ct. 65 L. Ed. and that this 134; U.S. Court should remand the cases to the circuit with court to it to fix the directions assessments accordance with valuations made assessor. None of county questions these was decided the circuit court. This many that, Court has held cases exercise jurisdiction, its will not consider appellate nonjurisdictional questions decide which were not the trial court. Work v. considered and decided Rogerson, 493, 510, W. Va. E. 2d 188, 199, S. and numerous cases there cited. prior
For reasons stated opinion, motions to reverse are sustained, judgments Circuit Monongalia County Court of are reversed and the are remanded to that court cases such further consistent with this action, opinion, may be proper.
Motions to granted; reverse judgments reversed; remanded with directions. Virginia West v Riley Waymond F.
(No. 12565) September 28, 1966. November 22, 1966. Submitted Decided *3 Calhoun, Judge, dissenting. plaintiff error. Lovett, for
Chester Attorney Leo Cat- General, Robertson, Donald
C. Attorney General,
sonis, Assistant
error. *4 Judge:
BekRY, Riley, Waymond indicted and F. defendant, Tbe County, West of Wirt tbe Circuit Court convicted Multiple Virginia, of embezzlement. for tbe crime totaling grounds alleged number some 90 of error assigned support motions tbe defendant’s were judgment, were over- wbicb arrest of new trial and in was sentenced defendant Tbe tbe trial court. ruled on October confinement in 8, 1965, to the West Vir- ginia Penitentiary period State for a of not less than years. Upon application one and not more than ten supersedeas Court a writ of error and were granted judgment on March to the 28,1966, of the trial argu- court. The case was on submitted for decision September Regular ments and briefs at the Term 1966. assignments The of error were reduced in this Court repetitious to 18 number, some of are which others without merit. superintendent
The defendant was of schools in County, Virginia, years, Wirt West for about two ending year in the middle of the an 1963, after audit department of the finance of the Board of Education by the Tax Commission disclosed numerous irregularities. As a result of this audit several indict- against ments were later returned the defendant, and persons, multiple charges other on indicated therein. particular charge in this case is on based an in- Jury County dictment returned the Grand of Wirt charging embezzling the defendant with of $1892.40 County, monies of the Board of of Education Wirt description grand jury of which was unknown property being posses- virtue said monies or in his management, position sion, care or because of his as superintendent County, schools Wirt and Secretary such, County. the Board of Education of that September аppeared On defendant be- County fore the torney Circuit Court Wirt with his at- presented plea in abatement based on alle- gations presented that there no evidence to the grand jury any that the defendant received United currency belonging States to the Board of Education County, Wirt stole, embezzled or currency converted to his own use United States belonging County, to the Education Board of of Wirt charges hearsay that such were based on statements, grand jury legal competent had no *5 an evidence before which to return indictment against prayed for defendant, and the indictment quashed. plea by to be trial was ordered filed hearing denied, court and after thereon was presented a for a after which the defendant motion particulars bill of which was ordered filed hearing trial and after a motion court, thereon, this pleaded guilty was denied and the defendant then charge to the indictment, contained issue was joined thereon and the case was set trial on Octo- 4,1965. ber October 4, 1965,
On the defendant moved the court writing presence jury grant out of the of the him ques- study a continuance in order to enable him to jurors subpoened tion additional to attend the County September, Circuit Court Wirt at its term. court, This motion was оrdered filed and the arguments hearing maturely after sidering of counsel and con- it. motion, said overruled
After the motion for a continuance was overruled writing the defendant moved the court in out of the presence grant change him a of venue which motion hearing arguments after filed, court, was ordered and the maturely
of counsel thereon and considering motion, such overruled it. To all such rulings objected of the court the defendant and ex- cepted.
The motion for a on a con- continuance was based approximately tention that 34 additional had been summoned to attend the Circuit Court Wirt County September, for the which the de- term, days fendant did not know about until three before he did not trial, therefore, the case was set question adequate opportunity investigate have them. change accompanied
The motion for a of venue was newspaper clippings numerous relative to school people County issue voted on of Wirt bond superintendent schools, while the defendant was regard returned to the indictments stories with well as *6 grand jury by which were and 13 affidavits the language, that wide- to the effect in identical couched spread knowledge against charges the defendant of the County, jury a chosen from and that Wirt existed County information would have of the residents Wirt hearsay, through charges against defendant to the the opinion the affiants he could in the of various by a of a fair trial Circuit Court receive County. were from Eleven of the affidavits Wirt Elizabeth and or the Town of Route No. Elizabeth Virginia. Pour the West Palestine, two from Town pairs three name, have last of the affidavits the same affidavits, are in six of the while of names the same remaining separate Five eight the are three names. the July 1965, and dated affidavits were dated change venue, for a 3, 1965. The motion October presented after the affidavits, with exhibits and no for trial the state filed counter case was called nothing affidavits, it is the state’s contention regard with said motion to be done needed came late. It the motion too contention because that the failure the state to file the defendant opposition motion counter affidavits to said would change him to a entitle of venue. newspaper clippings attached
The motion change a from a local news- venue exhibits were paper Parkersburg papers. The and Charleston and merely regard were factual to a stories stories with printed bond thereof, school issue and reсount text of the State Tax and of an audit, Commissioner’s investigation held connection therewith deter- if mine criminal had offense been committed. Some of the news stories criticized the defendant for judgment ability, mistaken or lack of administrative newspaper while others him. were favorable to inflammatory articles reflect no statements in con- charges brought against nection with the the defend- pro- They merely of the are factual statements ant.
ceedings pertaining matter. to the by assignment defend- asserted
Another of error jury. get impartial This ant the failure to an jurors challenging a motion matter was raised consisting lengthy of about for cause after voir dire pages was denied The motion the record. ground all 12 testified under trial on the court they give a fair and the defendant oath that would impartial guilt have to be that his would trial and proved beyond would before reasonable doubt Notwithstanding the fact that vote for a conviction. charges
many jurors from had heard about great at voir was conducted sources, outside dire attorneys length by both the court and questioned and the state. Two of the *7 by disqualified court, the dismissed were to be held places. panel Al- in their from the though and others obtained panel served on the had two of these juries grand returned indictments on other which had against not on offenses, but defendant for similar the charge grand jury for for the which him the indicted disqualified being tried, he was were which challenges by the on for cause. court trial of the case in the
The evidence introduced the that offenses which before the showed the arrangement, charged an defendant was concerned Troy Kidd, bar- between the defendant and one deal, Virginia, Hope, funds wherein ber of Mt. monies of the West County, of Wirt of Education Board by Virginia, a transac- means of were obtained West tion whereby the amount half of the defendant received charged being indictment, and Kidd in the embezzled or con- benefit received the other half without Education the Board of sideration whatsoever to pertaining to the amount. the rules entire Under county checks or Education, of the Board funds pay dispersed had be from the Board’s funds to orders secretary signed was ex-officio the defendant who required signature of the and also Board, regard President of the The transaction with Board. cashing issuing ap- and of the checks or orders pears knowledge been the Presi- have without any wrongdoing, dent the Board as to and is not signed from on clear the record how his name was except pay order that there is a statement in the State pre-signed Tax Commission’s audit to the effect any payee in blank, orders on, or without contained there- exposed were left of the President of office the Board of Education. appeared
Kidd at trial in answer to the summons placed issued the state and on the witness whereupon, testify stand; he refused to on advice of granted immunity prosecu- he counsel unless was from Thereupon, request tion. the court, of the attorney prosecuting granted immunity such and Kidd plan then to the testified scheme or and all the transac- in connection tions therewith between the defendant him. and Kidd testified that time some before Novem- ber defendant who had known Kidd for some time him called him if asked he would like “couple to make a of C’s”. Kidd then went presented office of the defendant where defendant him companies a with list of names to be used as fictitious presented money an outline, or scheme, which paid Board Education be was to to the non- companies expended by existent them. The de- give fendant asked Kidd much how he him would back replied give on an check and he $1800 he would *8 half of it back. The Board of Education’s schools nothing obtain in would the transaction. The name Building Supply Company of Kanawha chosen was in first be used deal. Kidd stated that he asked the going defendant, “What are we to sell the Board of replied, and the Education?”, defendant “Well, we will sell them conduit.” At that time the Board of constructing buildings Education was school from the money purchasing issue bond and was considerable quantities of material used in the construction of the buildings.
Kidd further testified that defendant came to pre-arrange- 13,1962, Charleston on November under brought pay ment made between them with him a day, payable order for $1892.40, dated and made company, Building Supply to the fictitious Kanawha Company, gave gave which he that Kidd Kidd; defendant one-half the amount of the order in cash and deposited Valley then the check in Bank the Kanawha company. days to the credit of the fictitious later the account in the name of the fictitious Three
company money was closed Kidd and which had been de- posited deposited in the fictitious account was “Olympic purposes. name of Co.” for tax At the Sales deposited same time Kidd the check or order, de- deposited joint fendant in a account which he had $900 Valley in with his wife the Kanawha Bank. Later, up order to cover this transaction Kidd had some printed company, invoices Oak Hill for the fictitious prepared and an invoice was on these forms showing defendant for use his the sale of the record, great original conduit and related items detail. The typed by invoice the defendant was because incorrect, the sale of inch conduit when there showed 1/4 no such conduit made. Later this invoice was revised inch to show conduit. 1/2 apparently
Another revision the invoice was made According in connection with a discount. to Kidd’s testimony, told this was done because only way him that the he could issue the check or order payments approval without advance materials a discount, of the Board of Education was to obtain gave rough him a and the defendant draft of letter explaining to be furnished to the defendant that there a discount in connection with this matter. The rough of the letter was submitted into evidence draft that it was in defendant’s hand- and Kidd testified writing. on were made another sheet to Calculations the amount of the discount order to make determine amount the same as the check. Kidd testified the net figures calculations and were also in these de- *9 handwriting'. that the fexidaxit’s Kidd farther testified prepared rongh explaining lеtter to Kidd he how he had the material which he stated delivered oiiginal copies never All of these had delivered. nse were memoranda from the defendant for Kidd’s introduced into evidence. which into evidence invoices were introduced confusing,
numbered about seven and are rather there as in- minor in invoices. The are differences appear three, voices to consist of one set of one of two, positive another two, and and Kidd was as in one the defendant selected to use connection which with the check he issued for The numbers of $1892.40. slightly all different, the invoices are but are dated to furnish the basis for the 18, 1962, October each check which was issued and indicated was order Number 1. deposited by
The check which was Kidd in the Valley through banking Kanawha Bank went channels at 14, 1962, and on November arrived back the drawee County, in bank Wirt where the Board Education’s building project deposited were funds where it paid by charged bank drawee the Board of Education’s account. testimony plan
Kidd’s shows that the or scheme originally County. conceived Wirt The memoranda, papers the check invoices, orders, were all prepared County. in Wirt The bank transactions are undisputably proved by independent rеcords of the office box at post banks concerned. Kidd obtained Virginia, Belle, West the name of the fictitious company mailing purposes. determining must
These facts be used whether County County the venue is Kanawha or Wirt question appears assigned in one of the errors by the defendant.
The defendant who testified his own behalf dis- that would puted testimony particulars in all Kidd’s prove part defendant, criminal intent on the *10 was some to the fact that there bnt is confirmed as dealings the defendant between kind transaction they legal. were insists Kidd, bnt the defendant telephone regard pro- with to He denied the positions, admitting, call that he had had con-
however, concerning materials to versations with Kidd sales of thought the Board of that he were Education bnt legal propositions. writing He the notes or admitted during introduced memoranda on some the exhibits testimony, merely jotted he Kidd’s but stated that had He that he had down notes for Kidd’s benefit. denied suggested companies, and claims the names of fictitious good paid had that he had Kidd in faith and been for in in- that materials called assured Kidd had that Kidd sent voices been delivered. He stated longhand sell, a in of what he had to him written list typed he it on invoice form for Kidd to and that an He that he went out to use as оrder. stated job and discus- construction to see what could be used that he the matter with the foreman. He denied sed prepared final He in form. stated the invoices had in to the check he Kidd Charleston deliver that met coming Elizabeth. He to to save Kidd trouble gave him half the amount of that Kidd back denied deposited explanation as to how he had the check. His day in Charles- amount on same almost same standing by side, because of the with Kidd his was ton, days grand- wife’s fact that few before time his house, lived and she had mother, who had at his died in at the she died. He stated that she cash time $1100 gift gave him his own and after her use, $200 remaining deposited account, he his death $900 pay later some it to funeral other and expenses. used that he settled her estate about He stated money years later and admitted this left two grandmother him in the listed his wife’s required by appraisement her estate as law and accounting in connection all therewith, was made no provisions a violation of the of Code, of which as amended. 44-1-14, anthority par-
The defendant he stated had the prior approval chase materials without of the Board particular if discount was obtained. This item total- ing approved $1892.40 involved was not case by the Board Educatiоn until December 1962. signed The defendant stated he assumed he the check pay Virginia. order Elizabeth, West assigned by The errors the defendant in this Court are reversal as follows: refusing “1. The Court erred in to sustain de- Plea in fendant’s Abatement. 2. Court erred refusing grant petitioner’s Motion for a Bill refusing of Particulars. 3. The Court erred grant defendant’s Motion for Continuance. 4. *11 refusing grant
The in Court erred to defendant’s Change supporting Petition of with Venue, including exhibits, thirteen affidavits. The 5. directing in Court erred not verdict the de- fendant at the of conclusion the State’s evidence following for the reasons: a. The State failed to prove guilty that of defendant was the crime embezzlement, prove of b. The State failed to currency’ the defendant received States ‘United belonging to the Board of of Education Wirt County, Virginia, charged in West as the indict- prove ment. c. The State failed to venue of the alleged County, criminal in act, Wirt West Vir- ginia. d. There were fatal variances between the proof, indictment and the e. to The State failed prove that there to the conversion defend- ant’s ‘own use’ of the United States of $1892.40, amount in
currency alleged in the indict- exceptions objections, ment. f. For other and mo- tions the defendant overruled the Court during presentation cаse, which State’s specifically herein. are not mentioned 6. prove County, to in failed venue Wirt West State prove
Virginia. 7. The failed to the crime State prove 8. The failed to of embezzlement. guilty embezzling the defendant currency. There 9. were fatal
‘United States’ proof. variances between the indictment and the granting 10. The Conrt erred in State’s Instruc- tions Nos. fusing and 4. 11. The in Court erred re- give defendant’s instructions Nos. 1, 4, 9, 11, 12, 13, 3, 14, 15, 16, 17, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 38, 37, 36, 35, 34, 33, 32, 31, 10, granting and 41. 12. The in Court erred not given the instructions in the on behalf in order which were numbered and
presented. reading 13. The Court erred to the jury following the State’s instructions the instruc- given by tions procedure defendant, instead the usual reading the State’s instructions first, and the defendant’s last. instructions 14. The admitting Court erred all of the exhibits of the proper State, foundation for all of said exhibits, being properly properly presented. not nor laid, declaring 15. The Court erred a mistrial concerning comments of the Prosecutor character of the defendant before the defendant put first his own character into issue. 16. The refusing grant Court erred in the defendant’s challenging motion for cause. 17. The by allowing Court erred the accumulation of so many points minor which, the effect of error, accumulated, when was so severe as to constitute prejudicial contrary error. 18. The verdict is the law and the evidence in for the rea- case, above for all other noted, sons reasons as pleadings and for all motions, noted objections of counsel, other reasons as noted *12 prior during, following to, trial, both objections appear in the record of which said specifically but have not been otherwise case, ’ ’ herein. noted assignments apparently have been of these Some aug- are not discussed or abandoned because in brief, cited the defendant’s mented authorities assignments lack as will be discussed merit, other later. assignment the court erred in re-
The first plea fusing in abatement is not to sustain defendant’s 378
discussed in assignment manner in defendant’s brief. This only ap is not without but merit, has, parently, been waived. It should be mentioned how plea September ever, that this was filed on 28, 1965, praying quashed ground for the indictment to be on the legal grand that no evidence was introduced before the jury. good grounds quashing This is not an in Woodrow, dictment. v. State 58 52 527, W. Va. S. E. Dailey, 545; State v. 520, W. Va. E. 668; 79 S. State Dawson, v. 129 W. Va. 40 E. 306. 279, 2d S. assignment
The second of error is the refusal of the grant trial court to the defendant’s motion for a bill particulars. assignment ap This of error is also parently waived, because there no is discussiоn con nection with this matter brief. defendant’s How assignment it ever, is clear that this is without merit, plea because when the defendant entered his of not guilty September on 28,1965, he advised the court that fully he was informed as to all matters contained indictment, at which time the case was set down for granting trial on October 1965. 4, Then, too, the refusing particulars a bill of in a criminal case rests in the sound discretion of the trial and such court, dis clearly cretion not was abused the case at bar. Hudson, v. E. 655, 553; State W. Va. 2d S. State Greer, v. 800. W. Va. assignment error,
The third the refusal of the grant trial motion for a court to defendant’s con tinuance discussed defendant’s brief and ground assigned without merit. is also The calling ground of additional not a is Pietranton, continuance. v. 140 W. Va. State question with E. 2d 774. This also rests the sound S. clearly of the trial court which was not discretion Jones, 271; v. 84 W. 99 S. E. abused. State Va. 107 E. Lutz, 88 W. Va. S. 187. assignment dealing change of error with fourth argument of defendant’s venue is discussed It the contention of extent. the defend- to some brief
379 ant that because fact a that be filed motion for change consisting a of with of venne exhibits stories newspapers from citizens and affidavits of Wirt Connty, any to which the state file failed to connter change affidavit, he is entitled to a of venne as a right. mattеr of is not in this This the law state or proper other state if not canse is shown. The Siers, cites 103 defendant the case State v. W. Va. snpport E. 136 S. this contention. 503, petition with affidavits in the Siers case was
apparently timely filed, and the affidavits contained statements of fact to the effect that a hostile sentiment thronghont against the accnsed existed the entire conn ty brought in which he and it held trial, case that where the state not controvert in snch did charges petition supported by contained good canse for the affidavits that was shown removal county. In the at bar there are no to another case throughout that the sentiment statements fact Connty hostile to the defendant, of Wirt was expressed opinions pre merely that local affidavits judice against It is well settled existed defendant. merely affidavits which this Court decisions opinion an affiant with conclusions
state the
against
prejudice
are not
exists
local
granting
change
grounds
sufficient
venue. State
Douglass,
State v. Luts,
Weisengoff, 271, 101 450; E. State v. W. Va. S. Beale, 104 Va. 187; E. State v. W. 502, 107
88 W. Va. S. E. 401. S.
617, 141 change application in a of venue criminal An of the trial to the sound discretion addressed case to show rests the defendant the burden court good supra; change. Lutz, State v. State cause for supra; supra; v. Pietranton, State v. Beale, State v. July by this Court _, decided Hamric, 151 W. Va. widespread senti statements and Factual 1966.
15, ments change newspapers for a are sufficient supra; v. Pietranton, Bearden State of venue. United America, States 2d 532; F. v. Ham *14 of ¿as supra.
ric, It been held that it is not sufficient merely prejudice against to show that exists an ac appear prejudice against cused but that it must great prevent him receiving him so toas from impartial a fair and trial. Beale, State v. 104 W. Va. 617, E. 624, 141S. 2d 401. Flaherty,
It is that true the case of v. State W. Va. 240, 24 S. 885, E. held that the fact a free exceptions impaneled from proof, can be is not conclusive change pre-
on a motion a for of that venue, judice endangering not does exist, a fair trial, but the decision in that case was on the based refusal of the by trial court to receive other evidence offered the ac- support change cused to the motion for a of venue. The at case bar offered no further evi- newspaper dence other than the exhibits of articles improper which were claimed and the affidavits. reply change
If the state fails to to a motion a of venue, or file counter it affidavits, then becomes question of law for thе court to ascertain whether or not the defendant has made case sufficient support granting change of the motion for a of Yancey App. State, venue. v. 797, Ga. 107 S. E. 2d Taylor, Carraway 265; 598; State, State v. 26 P. 2d v. 138 N. Watson, E. 2d 299. 49 A. See 2d 174. by The trial case, court the instant virtue of change for a venue, denial that the the motion found petition supported the exhibits and affi granting davits was not sufficient of the law to award the change venue, the facts and cir under case, cumstances and authorities relative there appear to, it not that does the trial court abused its grant ruling in its A refusal to discretion thereon. change motion for a of venue based on affidavits stat ing opinions and not facts is not an abuse of discretion Barick, 389 the trial court. State v. P. 2d 170. controlling there exists another reason
However, change grant a venue the case for the refusal presented timely filed. here; is, because was pointed It should he out that of the affidavits several change used the motion for a of venue were obtained July appeared on 5, and when the defendant 1965, attorney with his before the of Wirt Circuit Court County July plea 1965, on he filed a in abatement 28, prayed quashed the indictment he which was heard and overruled the trial he filed a mo cоurt, particulars tion for a bill of which was overruled plea guilty upon the trial and he entered a of not court, joined which issue the case down was set trial on 1965. No motion October was made at that change time for a of venue. When case was called for trial on October the defendant moved for *15 good a overruled, continuance which was because cause only not then shown, move, did the defendant presence jury, change of the for a of venue, out only written affi motion, based on his exhibits and request davits, with no to introduce further evi hearing arguments motion, and after on this dence; proceeded impanel the court overruled it and jury to try uniformly It held to the defendant. has been change present a motion a that for of venue must be practical at 22 C.J.S., ed the earliest moment. Criminal People App. 201 Jones, 51 Ill. 2d Law, § 202; 391, v. People 194 Lawrence, 426, v. 29 Ill. 2d 194;
N.E. 2d People 376 v. 337, 946; N. E. 2d Cert. denied U.S.
Wilfong, Ill. N. E. 256. 373, 162 17 2d change application general a rule that an for is submitting if it after
of venue comes too late is made questions for the court’s determination. other Superior Grays Harbour Court ex rel. v. for Alfani County, 245P. 929. that such motion comes too late
It been held has for trial and im been reached after the cause has impaneled. mediately jury Fallin has been before People Chessman, 5 v. 238 State, 13, 423; 86 Ala. So. v. v. California, Cert. denied Chessman 1001,
P.2d 96 L.Ed. Re. 915, 1330, denied 343 U.S. 650, S.Ct. 1344. It was held in 937, L.Ed 343 U.S.
S.Ct.
Daugherty
People,
that a
the case of
v.
Assignment error number which is discussed in re- that the court erred brief, in the defendant’s fusing challenging grant motion the defendant’s chronologically because for cause would follow procedure of the voir dire be- occurred at the end any testimony trial of the at the was introduced fore lengthy although a voir The record indicates case. challenges only twelve there were held, dire was qualified cross examination under cause. All twelve impartial jurors give a fair and the defendant beyond a take evidence that it would trial and stated jurors twelve for conviction. Of reasonable doubt perfunctorily challenged men- only are for cause five only warrant two brief and in the defendant’s tioned answering, Mr. Bell so Two of discussion. *16 they Daugherty, on had served stated that Mr. and another jury grand the defendant indicted which had which he was to the one an similar offense they stating could being that presently tried. After not convict give would fair trial and a the defendant beyond guilty proved all reasonable him he was unless jurors to re- two allowed these court the trial doubt, they off later panel. were struck Even if main on the challenges, the error not cure by peremptory it would jurors in qualified the as to serve not were if Dushman, 747, 79 W.Va. v. case. State trial of 509, 96 S.E.2d Flint, 142 W.Va. v. 809; State 91 S.E. 677. only persons disqualified jury from service paupers, State, idiots, lunatics,
this are statute, vagabonds, persons convicted drunkards, habitual crimes. amended. Code, 52-1-2, of infamous statutory provisions in are West There no additional challenges Virginia for cause and com- relative to prevails pertaining State, mon rule thereto law prima disqualification are: and the facie causes “ degree; (1) Kinship party ninth to either within the (2) (3) that has an side; arbitrator on either he pend- (4) there an cause; interest in that is action party; (5) ing money that he has taken between him formеrly (6) verdict; that for his he party’s juror (7) that he is the ease; same attorney, counsellor, steward, or or of master, servant, the society corporation him; with and causes same the same reason same class founded Dushman, v. 79 W.Va. should be included.” State principal causes for 809. The above listed S.E. challenge at law are taken from the above common sixth case. It will be that the cited Dushman noted ** * “ formerly juror ground reads: he was * * * not to construed as to This is be case; the same Juries, or another case. 50 C.J.S., mean a different early v. Mc- It was held in the case §224. juror though petit that even
Donald, 9 W.Va. jury convicted
who served on the which grand jury him, on the which indicted had also served setting of the verdict it aside would warrant appeared had a fair and that the defendant where it impartial motion to set aside the trial and when the ground of the was a one verdict on the jury grand an in- which returned member against him was made after verdict. dictment Cooper, S.E. In the case of State W.Va. grand person on that a who served held
358, was against jury an indictment the accused returned which petit disqualified a member of the for service as person In accused. that case the trial of the jurors who had served as members two court excused *17 384
of the grand jury which had returned an indictment the against accused, and the defendant, accused, ob- jected their being excused. This Court held that it was not error to excuse the In the jurors. case of v. Jones, 128 496, W.Va. a 103, S.E.2d motion was made to aside set the verdict on ground the that one the members of the which petit jury returned the verdict was also member of the grand jury which returned the indictment and it that was held even if assignment presented in the properly record, which case, was not done that it would not require reversal.
It is true
the
motion to exclude the two jurors
who had
on
served
other
juries which had
grand
re-
turned indictments
for similar offenses against
defendant was made before the case
proceeded
trial,
which was not done in the cases referred to herein-
above, but
McDonald,
clearly
indicated
Cooper Jones cases
that even if
a member of the
jury
member
petit
grand
was a
which
jury
re-
turned
indictment,
and the entire record shows
that the
defendant had
fair and impartial
trial, such
disqualification would not warrant
setting aside the
verdict of
It
has been
jury.
specifically held that
the fact that
juror
grand
one
was a member of a
jury
which
an
against
returned
indictment
the accused for
but not
the same
facto
ipso
similar offense
is not
for his
for service on the
ground
рetit
exclusion
jury
State,
the case. Johnson v.
try
The case of Va. 1099, held effect were not 156 S.E. dis- *18 qualified merely jury another because served on where the same involved, transaction was and to he disqualified upon the same evidence must he relied to convict the defendant. relationship
It been has also held that of one of the jurors prosecuting attorney disqualify to the not does juror. such Garland v. States, United C.C.A., F.2d 801. regard
A somewhat similar situation with to the question disqualification jurors was involved in the case of Carduff, W.Va. S.E.2d point syllabus 502, wherein the third of the held: subsequent appears juror “When it that a criminal fairly impartially just case can and act render a and upon verdict the the is trial, evidence adduced at he disqualified subsequent not merely by such in serve as case juror pre or
reason his service as a his spectator prior sence at a of a trial different charged with a different offense, but similar although the evidence similar and witnesses prosecution behalf of the are the same each case.” question discussing Cоurt, this Car duff previously case, said: “As the careful and indicated, thorough panel examination of the of the members twenty jurors judge on dire their voir of the any criminal of did court not disclose that of the members challenged panel, including those cause any prejudice, entertained defendant, bias, or partiality any or had defendant, toward formed opinion guilt or had innocence, of his assumed an prevent giving from attitude which would them impartial a fair an trial the defendant or from rendering just verdict based the evidence in the any showing jury that the case. In the absence of jury, impartial not an this Court should not disturb by the trial court in the discretion exercised ming deter- question eligibility of the members of jury to serve as such should reverse its jurors finding prejudice, bias, that the were free from partiality competent were to serve in capacity.”
It is contended that other were because the offenses similar in nature and character and involved other source, embezzlements qualify dis from same such would grand jury petit of another from members In service. connection with contention pointed were should he out that if the other offenses part plan similar in char of the same or scheme and such evidence of the offenses would be аcter, proper other petit all twelve of the
evidence charge in this hear the trial on the involved case *19 and intent. 7 M.J., Evidence, §48; show motive State v. Adkins, 579, 669; 109 155 S.E. W.Va. Leatherwood, 112 164 Barber v. 295; W.Va. S.E. Commonwealth, 182 Va. 565. S.E.2d assignments 6, 7, Inasmuch as of error numbers assignments will dis- 8, 9 and are all related be together. cussed assignments of the in these
It is one of contentions prove venue in Wirt the state failed to error County. Apparently, the contention based on is prepared the defendant check or order fact County brought the de- in Charleston Wirt gave given half in turn him Kidd, who fendant and deposited in cash and of the amount the check Valley all of which was Bank, therefore, in Kanawha check County, in venue was in Kanawha and done County County. in Wirt Kanawha and not to this matter evidence relative The uncontradicted order was drawn in Wirt the check or shows that alleged County, com- unlawful acts were all other and bringing exception County, with mitted Wirt depositing it there to check to Charleston Building company, Kanawha fictitious credit Valley Company, Supply the Kanawha Bank. When Valley deposited Bank and in the Kanawha it was company the credit was the fictitious credited to merely money Valley of the Kanawha Bank, money the conversion of the of the Board of Education County place of Wirt did not it take until was returned County
to the drawee hank in Wirt where the funds building purposes of the Board of for Education had deposited. County through been When the Wirt Bank, hanking correspondents, money repre- its sent the Valley sented the check to the Kanawha Bank, the crediting Charleston bank was then reimbursed company. the account of the fictitious The check or paid order was never until it reached the drawee any bank, and on the check endorsements at other place provide would not be sufficient to venue for the prosecution of the crime of embezzlement. State v.
Pietranton, W.Va. 774. The 444, S.E.2d Pietran- clearly county ton case indicates that venue lies where the drawee bank is located and the check is deposited payment, paid until the check is there is no conversion embezzlement. This true may if a because even check is written and endorsed, never be cashed. The Pietranton case turns on the fact that the evidence did not show the location of the bank which the check was drawn. The evidence showed that the bank was located Weirton but that City Weirton located both Brooke and the bank and because of the fact thаt counties, Hancock might boundry have within been located of Han- *20 County proved cock this Court held that venue was not County, only in Brooke because the endorsement of the county. check was executed in that This matter is dis- in 18 Am. Jur., cussed wherein Embezzlement, §65, purpose is stated: “The fact that the of the accused county was effectuated in another does not alter the where rule, the instrumentalities were set in motion jurisdiction within the of the court. the Thus, venue properly county for an embezzlement is in laid the accused drew where checks and committed all other although depository paid acts, unlawful bank which ’’ county. in the checks was situated ly another This clear- County in indicates that the venue was Wirt because alleged County all the the check in Wirt was drawn except depositing the check to the acts, unlawful credit of the fictitious
company, place in took Wirt County. Berle, in case of 117 W.Va.
It was held general in em- rule, that: “As a 188 S.E. prosecutions, venue must be laid bezzlement county In was consummated.” wherein conversion belonging property to another that case or materials Monongalia County no intent where were obtained property or materials and the shown, to defraud was County Harrison sold and the were then taken into money of the ac- converted to the use received was in the Berle case that venue was It was held cused. County. at bar The conversion the case Harrison County because that consummated Wirt was where the funds of posited the Board of Education were de- on check. and disbursed group assignments in this of related of error Other prove assignments failed to the crime are that the state prove that the defendant embezzlement, failed to currency guilty of of United States embezzlement money, a fatal variance between and that there was or proof. the indictment against con- the defendant
The indictment returned embezzlement of the one counts, tained two description, money being etc., $1892.40, in the amount of grand unknown, and the second to the Upon larceny amount. of the same count was for the required the the trial court defendant, motion of prosecute the defendant under elect to state to The indictment was drawn under count. embezzlement 61-3-20. State, Code, statute this the embezzlement provides that: This statute agent, any clerk or servant of officer,
“If county, any district, district, school or of State, * ** fraudulently convert his own or embezzle * ** * * # property any money effects use, persоn, come into shall have which other *21 possession, placed Ms or been Ms or nnder care management, by place virtue of or Ms em office, ployment, guilty larceny be shall be there * * * of. any agent,
“And whenever clerk or officer, ser any county, vant of State, this district, or of school * ** appropriate district, shall or use his own any person, any benefit, or of benefit other * ** * * * money, belonging or funds, to this State ** * any county, or to such district, school district, he shall be held to have the same, embezzled guilty larceny prosecution be of In thereof. any agent, of officer, such clerk or servant any county, State or of district, school district, * # * charged appropriation with or use for his any person, own or benefit the benefit of other * * * * # * money, belonging funds, to this State * * * any county, or to district, school district necessary it shall not be describe indict identify upon particular ment, or to the trial, the * * * * * * money, appropriated or funds, or used for his own benefit or for the benefit other * * *” person. undisputed
The evidence is this case clear agent the defendant was an or servant of the Board money deposit Education, and that the on in the bank building which order was drawn in a fund for the Board of that such was Education, under management the care or of defendant virtue of his employment authority office or and that had he purchase on issue such drafts such funds for the approval without materials the school board when clearly obtained, discount could be and thus it comes provisions within the of this Statute. v. Work man, 91 276. It been 771, 114 W.Va. S.E. has held that having authority county where one to draw checks on a unlawfully so account does party, sends to a third away actually gives it and never obtains guilty money he himself, embezzlement. Territory 2 and 4;
A.L.R.2d
footnotes
v. Hale, 13
N.M.
There is no common law crime of merely bis own the statute makes one who converts to legally property in his use the of another which is custody, guilty larceny. v. Work The case State quite to the man, S.E. is similar 771, 114 W. Va. County county at commissioners of the case bar. Two Virginia, Raleigh County, were indi Court of West statute here for con cted under the same involved spiracy plan buy poor with another in a scheme or A check farm for than it was offered for. more $3650 payment in for the $12,500 or order was issued Raleigh deposited property in was a bank and only County. property received 8 The owner of the property and the for the sale of his thousand dollars and the defendants balance was divided between to be embezzlement It held that case others. was money county was because the under the statute in the control of the paid out commissioners and was by elements of embezzlement their order. The essential relationship a trust of the were listed as such cases money belonging property else involved to someone by possession virtue of of the defendants in the with intent converted to their own use offices and their present all elements are These essential to defraud. in the case. instant Lomax, 86, 14 322 Mo. S.W.2d
In v. the case fund of the school was treasurer 436, the defendant money placed president of the bank. He on the checks drawn then issued bank, school school personal pay debts. fund to money, the school that he did embezzle contended money. money It the bank’s he used was that the custody and control that he had the in that case held and that was fund as treasurer of school’s school guilty money, he was held be and therefore of embezzlement. People Knott, P.2d
In the case of county having auditor that a it was held A.L.R. payable authority or orders to issue warrants county treasury expenses an who drew order which were not have under his incurred was deemed to represented by control the amount drawn the order pay expenses guilty him to such thereforе and he was ‘‘ of embezzlement. It was in that case: who stated One possession money may not in have it his under that it control sense is under his direction ’’ management. prosecution
It is true that for embezzlement the property ordinarily proved embezzled must be alleged in if indictment, check, but or other evi- merely dence of the means which indebtedness, *23 money alleged pro- to have been embezzled no variance. 29A C.J.S., Embezzlement, there is cured, §37.
It clear that the in the case is evidence introduced complied requirements of the statute at bar with type prop- proving the crime embezzlement, erty money embezzled, and there was no variance or proof. the indictment and the
between assignment by of error relied on the defend- Another declaring a mis- that the trial court erred not ant is by prosecuting attorney con- trial comments cerning before the de- the character of the defendant assign- put into his own character issue. This fendant by to the court error is based on statement ment of attorney, during the trial of the case the defendant’s in the jury, presence when he noticed certain of the prosecuting attorney possession papers in the possession in the of the that all documents and asked attorney given him for prosecuting be to examination. by attorney Friend, made Mr. statements
The exact prosecuting Black, Mr. at- and defendant, pages torney, in the record on 237 and as found are: matter, this with connection appear Honor, Your there Friend: be
“Mr. prosecutor possession of the additional allegedly into introduced evidence not documents by allegedly pertaining written the defendant and to transactions between the defendant and the witness on the stand, counsel for the defendant given any copies has not been of them and these produced documents have tion documents been never for examina- by counsel for the I defendant, and move all possession prosecutor be produced by for examination counsel for the de- purpose cross-examining fendant for the witness toas these transactions.
“Mr. Black: Your with Honor, reference to attorney what the defense I indicated, has have my possession other documents which were fur- by they me nished to Kidd; Mr. however, relate to charged other offenses, not the one in the indict- nothing ment, and have to do whatever with this case, and to reveal them to him at this time would perhaps revealing be other cases.
“Mr. I think, Friend: whether are rеlevant I not, can best determine that. ‘‘ up produce It Court: to the state its going request am case, and I to overrule the entirely disregard tell the statements made counsel, whether counsel for the defendant prosecuting attorney, consider anything. the same as evidence of *24 I “Mr. Friend: Your move Honor, for mis- ground prosecu- trial on the the of remarks the respecting jury. tor other offenses in front of the “The The motion Court: is overruled.
‘‘ my exception. Friend: I Mr. Show As under- ruling stand, the Court’s is that the other docu- possession ments in the produced of the state will not be my my before examination cross your examination, is that correct, Honor! question. any Let me ask a “The Court: Were by you your in these other documents used examination the witness? your Black: Honor. No,
“Mr.
393 any you they “The founda- Court: Did furnish your tion for ? examination of the witness your “Mr. No, Black: Honor.
‘‘ ’’ The Court: Then the motion is denied. place, In no the first had counsel for the defendant right presence jury in and in the demand, of the papers possession middle of trial, that all prosecuting attorney the any him, over to and be handed attorney by prosecuting
statements made in request, connection with such justified would be demand, under the and error which circumstances, may by attorney have been committed was invited judgment for the defendant and a will not reversed be by for an error in introduced the record invited party asking Appeal 1 M.J., the reversal. and Error, §256. Co., Truschel v. Rex Amusement 102 736, 136 274 47 215, 30, W.Va. S.E. Cert. denied U.S. 71 L.Ed. v. Hutchin 1316;
S.Ct. James Sons Co.
son, Calhoun, 1047; 79 W.Va. S.E. State v. 1098.
W.Va. S.E. assignments Seven of the of error deal with instruc- It contention that trial court erred tions. is the giving by all three state, instructions offered refusing by instructions offered the de- giving in not the instructions on behalf of the fendant, in the order in which were numbered presented, reading jury and in to the the instruc- by following reading the state tions offered by the instructions offered defendant instead reading first the in- the state’s instructions by last. structions offered the defendant We find no offered the state error the three instructions They merely principles given the court. cover the governing law the matter involved this case. Similar appear approved to have been instructions State v. supra.
Pietranton, were which offered the defendant Instructions properly appear to have been refused be- and refused *25 many they repetitious and cause instances are by given, were covered while others other instructions complete proper law the not of the and statements group in- of facts and of the case. One circumstances by with cir- structions offered cumstantial the defendant dealt which is involved the case evidence, by presented the here. The nine instructions offered by adequately given and the court covered defendant the theory They jury the told the defendant’s of case. (1) as not to be considered that: the indictment was guilt, (2) of of the the burden evidence defendant’s prove guilty proof on the rests the state to defendant beyond (3) the doubt, all defendant reasonable by charge presumed innocent of the con- law to be judge (4) it of tained in the was the sole indictment, credibility (5) witnesses, the had the defendant right testify in have his evi- to his own behalf and any (6) witness, the other dence considered same abiding lack conviction reasonable doubt defined as acquittal, requires (7) moral the certainty part any on be with actions the was not to concerned except solely the matters confined guilt of the innocence or the defendant of with the testimony (8) charged indictment, offense appeared to be hostile should be witness that of scanned fendant does of (9) that de- caution, innocence of and,
with justify finding proved not have be to appear guilty”. “not The Pietrcmton case would authority of the trial court a case for the refusal be by give instructions offered dе- this kind assignments referred to above. Some fendant objections to the instructions made offered error and appear given the court to be frivol- the state summarizing instruction number as, such ous, it did not should fail because contain indictment peace dignity “against the state”, words offered the defendant were not the instructions in which were in the order numbered read reading presented, erred in- and that court by the defendant first and those offered structions
395 assignments by no have last. These offered the state and instructions All are the court’s merit. instructions jury by the action the as shall be read the court to disclosing ruling reference to or of the without court, prayed. by they may party Code, have been the whom may offered refuse all instructions 56-6-20. The court charge by party give its own. written either jury the instruct It for the court to Code, 56-6-19. is given the court and are instructions of and when parties request Instruc- M.J., who them. not tions, §13.
Assignments to the effect of error were included not of all exhibits was that the admission state’s by properly and that the court erred a foundation laid many points allowing minor the accumulation prejudical which constituted the accumulation of error, error. by many repeated objections
Although were made of exhibits to the admission counsel for the defendant carefully by examined we have state, evidence into and find into evidence of the exhibits the admission in connection therewith. no error opinion of this included in the discussion
We have objections many made were which there matters to attorney during for the the trial of the case any ac- whether or not to ascertain order prejudicial alleged be errors would of such cumulation opinion, indi- as we are of the defendant, to the prejudicial committed error was that no herein, cated during warrant trial of this case would by the state The evidence introduced thereof. reversal clearly shows that the de- if believed charged guilty in the of embezzlement fendant indictment. all the intro- evidence a careful examination
On during it can not be said trial of this case duced proven guilty beyond a rea- the defendant charge embezzlement contained doubt sonable grand jury returned of Wirt indictment County, court will not reverse the lower and this Court the error is harmful for to the error in the trial unless Lane, 44 v. W.Va. S.E.
defendant. State Gebhart, 964; 1020; v. 70 W.Va. S.E. State 513. Lewis, 57 S.E.2d W.Va. opinion, judgment For the reasons stated County of Wirt is affirmed. Circuit Court
Affirmed,. Judge, Calhoun, dissenting:
Respectfully My primarily I dissent. dissent relates refusing, upon in a to proper action of the trial court timely in of the ac- and motion made behalf prior who had on cused, to exclude two sat grand juries which indicted the accused for different My view that the trial court hut related offenses. is flagrant
committed a and most unfortunate abuse of respect pre- in that, discretion in this and line with viously principles, legal the error on the well settled part compelled of the trial court is such as should have a reversal an of a new trial this and award Court. I that the demonstrate, and shall undertake to believe, holding respect wholly lacking in is Court proper precedent justification contrary in to the turies as a valued and its
spirit of a rule which has endured for cen-
safeguard against unfair trials of charges. persons upon criminal syllabus McDonald,
In 456, of State v. 9 W. Va. principal challenge “It a this Court stated: to is cause juror grand jury that he one of the which legal principle This been found indictment.” has faithfully to in adhered this state since the time of its Commonwealth, Dilworth v. 12 formation. See Gratt. Cooper, pt. syl., 1 689; 472, State v. W. Va. 82 S. E. Jones, 128 358; 496, 501, State v. W. Va. 37 S. E. 2d legal principle universally 106. It is which is 103, recognized applied. Jury, Am. Jur., Section page page Juries, 228, 191; C.J.S., 224, Section 966. common reason, It is buttressed considerations justice. sense general application rule seems
Tbis relaxed of tbe upon following C.J.S., statement to be based tbe page fact tbat one was Juries, 966: “Tbe 224, Section grand jury tbe accused a member of a wbicb indicted ground for exclusion for a similar offense bis is * * jury. support statement, from *.” In of tbat tbe State, 115, 34 Tex. footnote refers to Johnson Cr. page C.J., Note 34. In 35 327, 29 W. and 35 C.J. S. page appears a Note there statement
Juries, quoted tbe same as tbat above from 50 C.J.S. wbicb is tbe Tbe footnote referred to 35 C. J. as basis to in 50 statement, tbe tbe same footnote referred State, follows: “Johnson v. 34 Tex. Cr. C.J.S., is as c.43, 473. But 2 Hawkins P.C. sec. 115, 29 S. W. see precedents in tbe foot- 27.” Tbe or autborities cited tbey proposition for are not sustain tbe wbicb notes, do contrary true. tbe basis for tbe Tbis is Quite cited. bolding
my in tbis assertion tbat tbe Court’s confident justification. wholly lacking precedent for its case is above State, tbe Texas case referred to Johnson v. majority opinion relied tbe was decided authority opinion legal in tbat case cites no
1895. Tbe *28 quite precedent It whatsoever, and it is brief. does or opinion objection appear tbat to tbe not from tbe per- petit juror made before be was seated and opinion appears tbe While it from mitted to serve. petit jurors previously a tbe bad sat on
that one of * * * charging рresented grand jury a a “wbicb bill appear not tbat it does tbe similar offense”, similar offense was tbe offenses or related time circumstances as are present Approxi- involved tbe case. length opinion
mately tbe of tbe of tbe one-balf following embodied tbe statement: case is Texas jurors one jury tbe who tried tbe fact tbat of case was “Tbe presented charging grand wbicb a bill tbe on appellant to tbis, a similar offense but not with tbe disqualify juror. ipso not does The facto, same * * (Italics may been distinct. transactions supplied.) have comparatively pertinent, I are believe, More bolding, in accordance with the cases recent Texas general if, reversed over that a conviction must be rule, objection fail courts to exclude the trial accused, jury grand petit juror on the which one who sat as State, 147 Tex. Cr. returned the indictment. Wolfe (1944); 116 Tex. State, Mitchell v. 2d 274 62, 178S. W. (1930). II Pleas of Hawkins 27 W. 2d Cr. S. page reference was made in to which Crown, following Corpus contains the footnote, Juris petit jurors: relating disqualification language, of “ * * n * exception against juror, that hath he party against for the same an indictment found only upon adjudged good, not hath been cause, trial * * * but also the trial indictment, such * * * wherein the sаme indictment or action another happens question, material, to be matter is either directly though in issue.” not argu- appears and oral record,
It from the briefs county super- defendant, in this case that the ments charged in- with various schools, intendent money prop- or embezzlements stances of thefts employer, erty belonging board of education. to his it was dis- with the voir dire examination In connection Orley who sat in the one of the Bell, closed that grand jury previously on a had sat case, trial of the apparently for theft defendant, which had indicted Daugherty, Marvin who of a welder. or embezzlement juror petit trial of the had sat on case, sat as a participated prior grand in the return and had an in- for embezzlement $300 of an indictment Eiley, larceny against de- $300 dictment fendant. why naturally question did counsel arises, Possibly Daugherty? Bell and accused strike
for the simple for the accused that counsel answer is a total to exclude of twelve trial court moved the prospective *29 jurors on the basis of answers made 399 The motion examination. on the voir dire them entitled to course, was accused, The of overruled. challenges. peremptory hut six felony a is entitled to
“A trial of twenty qualified jurors, panel from eaсh free of being required prejudice, exercise his before bias challenges.” right peremptory Flint, 142 State v. toas pt. syl., 677; 1 E. State v. Gar 509, 96 2d W. Va. S. pt. syl.,
giliana, 1 E. 2d 265. 376, 138 Va. 76 S. W. provisions Code, 1931, 62-3-3, as of Under * * “ # felony as entitled one accused of is amended, jurors, unexcep right twenty panel to a of matter of law, the common before under rules of tionable being right peremptory upon his called to exercise pt. challenge.” Dushman, W. 747, v. Va. State quotes majority opinion syl., from E. 809. S. principal case an enumeration Dushman challenge ef at common law. To same
causes Co., Baltimore & Ohio Railroad Watkins v. fect, see point I 223. The 268, 274, 43 S. E. 2d 130 W. Va. quoted emphasize language that the
wish to is opinion majority Dushman concludes from the case * * *“ causes the same class or follows: I the same reason should he included.” founded consider an trial that,
this as admonition to courts jurors determining qualifications petit to sit cases, substance, of criminal should be sacri trials ficed to empty mere form. object law to is secure whose
“The wholly prejudice for or minds are free from bias or against 48 W. Hatfield, the accused. State v. Va. weight great very for the E. 626. This basis
37 S. sanctity given Those who ad- to their verdicts. respect salutary the law its wise and minister must respect procedure, like fоr law in order that rules * * may inspired *.” in others. he and order E. 374. Messer, 241, 245, Va. S. So W. require- our traditional and fundamental are
basic by impartial fair trials criminal cases ments of *30 400
juries split that we should not hairs and construct legal lacking determining quali- bases in in substance jurors fications of power for such trials of “The cases. reject jurors of the court to its own motion legal question is not to a limited decision the strict qualifications juror, of the or confined to the enu- * * grounds challenge merated power may but *; the court’s any
be exercised cause which the court juror in its discretion sufficient to deems render the page unfit to 50 C.J.S., serve.” Juries, 249, Section 1006. majority opinion
The Court seems to reason part general plan that the other offenses were of a scheme and similar in character and that, therefore, tending prove guilt evidence to the defendant’s of the proper other offenses have would been trial this case to show motive and under a intent, rule stated by including this Court numerous cases, the follow ing: pt. syl., Withrow, State v. 142 522, W. Va. 7 96 S. pt. syl., Evans, E. 2d 913; State v. 136 2 W. Va. 66 syl., pt. Lewis, E. 2d 545; S. W. Va. syl., 513; Geene, 57 S. E. 2d State v. W. Va. majority E. I S. 2d 90. From as this, understand the opinion, it reasoned information Bell and may Daugherty have received relative to other related grand serving jurors offenses while as would have proper go petit jury been evidence to to the that, trial of case and were not dis therefore, qualified jurors. petit grasp sit as I cannot reasoning. a discern tenable basis such by prose- I am troubled also statement of the cuting attorney, presence jury, of the that docu- * * “* possession ments in his related to other of- * * charged in not the one fenses, the indictment, wholly response proper This uncalled for was to a request judge. to the defense counsel directed trial gratuitous agree I cannot that this statement attorney prosecuting legal be can excused under the relating principles error. to invited of in- rule proper application. have vited error can no prosecuting Obviously at- made the statement prejudicial. jury torney presence was excluding Bell in not and the error This error tendency strong ac- Daugherty have the statement evil in each other. When centuate the attorney, prosecuting coun- defense made merely After the motion a mistrial. moved for sel counsel did overruled, to direct mistrial disregard the court to direct move ground on this latter I would not reverse statement. grant a trial on I reverse and new but would
alone, *31 upon proper and trial refusal, court’s the basis Daugherty timely Bell from exclude motion, to twenty jurors. panel of Virginia of West B. Legg
Willard (No. 12567) 22, 1966. Decided November 11, 1966. Submitted October