Upon a writ of error to the judgment of the circuit court of Wood county, rendered on the 17th day of June, 1915, denying defendant a writ of error to the judgment of the criminal court of that county, rendered on the 18th day of May, 1915, and whereby upon the verdict of the jury finding him guilty of grand larceny as charged in the fifth count of the indictment, it was adjudged that he be confined in the penitentiary for the period of six years, - there to be dealt with in all things as the law directs.
The subject matter of the larceny as charged in the first and fifth counts, was one lot of rope of the value of three hundred dollars, alleged to have been the property of the Monongahela Biver Consolidated Coal & Coke Company, a corporation. All the other counts wore eliminated by an instruction to the jury to confine themselves to these two counts. The jury found defendant guilty only upon the fifth count.
The first point is that the court erred in overruling defendant’s motion to quash the indictment. We have examined the indictment and find it good in law. Counsel point out no infirmity therein or in either count thereof, and we see none. The point will therefore be overruled. '
Next it is complained that the trial court erroneously denied defendant’s motion for- a continuance at the May Term, 1915, based on the absence of,his witnesses, Mrs. Maud Campbell and Mrs. Ella Bobertson, both summoned, and whose fees had been paid by him. Bespecting Mrs. Bobertson, the court awarded a rule and attachment against her, which was not issued or served because she was brought in by defendant and gave evidence in his behalf on the trial. Mrs. Campbell, Mrs. Bobertson’s daughter, was sick and unable to attend, and the judge of the criminal court was of opinion that defendant was not entitled to -a continuance on account of her absence, because one continuance had been granted him on account of her absence and the absence of her husband, and defendant who lived in the same house with her, knew of her infirmity in ample time before the trial to have taken her deposition and neglected to do so, wherefore, and as the
It is contended, however, that notwithstanding the previous continuance on the ground of the absence of the same witness, defendant was entitled to a second continuance when he showed she was necessarily absent, and that it was reversible error to deny him this right. For this proposition, the case of Gwatkin v. Commonwealth, 10 Leigh 687, and other Virginia cases are cited and relied on, but the Gwatkin case is the only one directly in point. That was a murder case in which the defendant was convicted and sentenced to be hung. The absent witness had been present at a previous trial and gave very important testimony, and the case had never been continued on the ground of his absence, and it appeared to the court that defendant had not been in any way negligent in preparing for trial. Moreover since that case was decided our statute on criminal trials, section 1 of chapter 159, was so amended as to provide for the taking of depositions in -criminal cases. Chapter 122, Acts 1882. We find no such provisions in the statutes of Virginia, in force at the date of the trial in the Gwatkin case. Certainly there is nothing in chapters 208 and 211 of the Code of 1849, and we find nothing in the corresponding chapters of the Code of 1860, relating, respectively, to trials generally and to criminal proceed
In the case at bar, however, and in view of the character of the proposed evidence of the absent witnesses and the facts disclosed on the trial, we do not see that defendant could have been materially prejudiced by their absence. What he swore he could prove by Mrs. Campbell was that Trees, the other party to the theft, the state’s witness, also indicted therefor, had said to her when he brought the rope to the boat that he wanted to hide it, and did hide it, and that defendant had nothing to do with stealing the rope. If his evidence on the motion for a continuance at the previous term is to be believed he could have shown substantially the 'same declarations of Trees by John Campbell, and, though he was present at the trial, he did not attempt to do so. So far as we can see, Mrs. Campbell’s deposition would have served the defendant as well as her personal appearance in court, and under the circumstances should have been taken before the day set for the trial.
The general rule is that a motion for a continuance is addressed to the sound discretion of the trial court reasonably and not arbitrarily exercised, and its judgment thereon will not be reversed unless plainly erroneous, and so plainly erroneous as to evidence abuse by the court, of its discretion. State v. Brown, 62 W. Va. 546; State v. Lane, 44 W. Va. 730; State v. Harrison, 36 W. Va. 729; Fiott’s Case, 12 Gratt
The prisoner next complains of the admission and rejection of evidence. We have carefully examined all the evidence involved in these points of error and find them without any substantial merit. It is unnecessary to go into the particulars -respecting them. In most instances the evidence objected to was either nonprejudicial, or properly admitted; where proposed evidence was rejected there was no proffer ,and no showing made as to what the evidence would have been, if admitted. Certainly the'prisoner could not have been prejudiced by the ruling of the court thereon.
Another complaint relates to the instructions. The court gave six of the ten instructions proposed by the state and rejected the others; it also gave five instructions at the instance of the defendant, and rejected others, none of which were brought up by the record.
The main and only point seriously urged against the state’s instructions given is that they .so persistently urged and repeated the subject of reasonable doubt as to be argumentative and prejudicial on this ground. But as they each propound a correct legal proposition, as we decided in State v. Huffman, 69 W. Va. 770, this general objection was without substantial merit and was properly overruled by the trial court. The other objections to the instructions are likewise without merit.
Lastly the point is made that the court erroneously denied defendant’s motion for a new trial. The principal thing urged in support thereof is that the court instructed the jury to render a verdict on the first and fifth counts, and the verdict returned was upon the fifth count only. This objection answers itself. The instruction referred to was Number 8, given at the instance of the state, as follows: “The court instructs the Jury it must render its verdict upon the first and fifth counts of the indictment and disregard all other counts in said.indictment.” Certainly'the defendant cannot complain that he was not convicted on both counts.
The judgment will be affirmed. Affirmed.