State v. Lawson , 125 W. Va. 1 ( 1942 )

The majority opinion is based largely on the point that the state went too far in its proof tending to establish the identity of the defendant as the person who had been twice formerly convicted in the United States of a crime punishable by confinement in the penitentiary. The fact that he was so convicted was alleged in the indictment, as our statute requires. Code, 61-11-19. Under that section, the jury was required to find the fact of such convictions, otherwise, the additional punishment provided for therein could not be imposed. I am in sympathy with the manifest purposes of the Court to discourage the introduction of any testimony bearing upon facts connected with former crimes. I think a person charged with crime should be tried on the offense alleged, and that where he himself does not bring his character into question, all references to former transgressions of law should be avoided. In State v. Stout,116 W. Va. 398, 180 S.E. 443, the reading to the jury of a former indictment, incorporated in the indictment then pending, and which went into detail as to the crime for which the defendant had been formerly convicted, was held sufficient ground for reversal of a judgment of conviction. In that case, it was stated that it was unnecessary to copy the former indictment into the one on which defendant was being tried, and I think that was the real error in the case, rather than the reading of the indictment to the jury, for the reason that, under our practice, the jury is permitted to take the indictment at the end of the trial, and, indeed, its verdict is usually written on the back thereof. It may be questioned whether the mere reading of the indictment was prejudicial when the indictment itself was afterwards delivered to the jury and presumably read by it. But in that case, the Court said that the proof should have been confined to the record of the judgment of the court on the former trial "and to the identification of the accused as the person formerly convicted." In the case at bar, the indictment merely alleged the former convictions, and the evidence introduced to sustain the same was court records, the testimony of prison officials, photographs and fingerprints, bearing solely on the matter of identification. It was probably not necessary to go to this extent. Clearly, the court records were admissible, as was the testimony of the prison officials that the defendant was the same person who had been confined in the penal institutions with which they were connected. Ordinarily, that should have been sufficient. But whatever harm was suffered by the defendant had then resulted, and the mere fact that additional testimony as to identification was introduced, added nothing thereto and was not, in my opinion, prejudicial. I do not believe that prosecuting attorneys should, ordinarily, be limited in the amount of proof they may present to a jury. The state having the burden of proof, and being required to establish every material point of the case beyond all reasonable doubt, should not be restricted and made to fear that too strong a case will be made. This is particularly true with respect to identification.

I concur in the idea that the present habitual criminal act is unfair to a defendant. The mere fact that he is charged with former crimes in the indictment on which he is being tried places him at a disadvantage. The question of former conviction should, in my opinion, be determined in a separate and independent proceeding. In some jurisdictions, such a charge is tried by a separate jury, and our statute provides for such a procedure. Code, 62-8-4, as amended by Chapter 23, Acts of the Legislature, 1939. However this may be, this Court could not justify any modification of the statute, or its application, different from that plainly intended by the Legislature. I do not agree with the idea advanced that because an independent proceeding has been provided for, the procedure set out in Code, 61-11-19, may not also be followed.

In my opinion, the evidence of Tom Bostic and his wife had no substantial effect upon the jury in arriving at its verdict. Testimony of that character should have been more strictly limited, but I do not believe any irregularity in its admission in this case is sufficient ground upon which to base a reversal.

Therefore, I would affirm the judgment.