State v. Rush , 108 W. Va. 254 ( 1929 )

I concur in the result, but I do not concur in certain features of the opinion. When it appeared on voir dire that two of the jurors were related to certain depositors in The Peoples Bank of Buckhannon, the court carefully interrogated each as to whether or not, because of such relationship, he entertained any prejudice against the defendant. Each answered unequivocally in the negative. Assuming that they were honest men, their answers must be taken as true, unless it can be fairly said that the circumstances were such as to create unconscious prejudice in their minds. I am unable to take the latter position. Those jurors were not disqualified per se because of their relationship to certain depositors and their answers to the court's inquiries were such as to carry conviction to the mind of the court that they were not disqualified because of prejudice. While an abundance of caution on the part of the trial court might have suggested the advisability of excusing the two challenged jurors from the panel, the court's action in retaining them cannot, in my judgment, be said to constitute erroneous procedure. An accused is entitled to a panel of twenty legally qualified jurors, "free from exception", Code Chapter 159, section 3. An exception, however, as contemplated by the statute, must be real and not inconsequential. It is significant that after the negative answers of the jurors to the court's specific inquiry as to whether they entertained prejudice because of the relationship mentioned, there was no further inquiry made of the two jurors by counsel for the defendant with reference to prejudice. Their negative answers to the questions of the court constituted the last word on the subject. No effort was made to probe their conscience nor to develop the possibility of unconscious prejudice. Where a juror's answers are so unequivocal and satisfactory as to convince the trial judge of the juror's fairness and impartiality, it is the settled practice not to interfere with the court's finding, unless clearly against the evidence. State v. Toney, 98 W. Va. 236. A depositor in a bank stands on the basis of a creditor. A juror's relationship to such creditor does not necessarily disqualify him from sitting in the trial of a person charged with embezzling assets of the bank. If a juror's relationship were to a stockholder rather than a creditor or depositor we would have a more serious situation.

Much reliance is placed on the exception taken to the action of the court in giving to the jury state's instruction No. 2 over the objection of the defendant. It reads: "The Court further instructs the jury that after they shall have compared and considered all the evidence in this case, if they have a reasonable doubt as to the guilt of the prisoner as charged in the indictment they cannot convict; that by reasonable doubt is meant such a doubt, based upon the evidence, as the jury may honestly and reasonably entertain as to any material fact essential to prove the claim charged. It must not be arbitrary doubt without evidence to sustain it, but must be serious and substantial in its nature in order to warrant an acquittal and a doubt which the jurors may honestly and conscientiously entertain." The last part of the instruction is the portion challenged. It is said that the statements in the instruction that it (meaning a reasonable doubt) must be "based upon the evidence" and "must not be arbitrary doubt without evidence to sustain it" are not sound. If these words mean merely that a doubt to be reasonable must not be chemerical and inconsequential, but must be such as may develop in reasonable minds from the whole evidence, then there is nothing wrong with the statements; but if they must be interpreted to mean that a reasonable doubt cannot be entertained except when based upon affirmative testimony, then they are not sound, because reasonable doubt may properly arise from a lack of sufficient evidence on the part of the state. Perhaps the challenged phrases are not so clear as they ought to be, but instructions embodying this proposition have, in more than one case, been approved by this Court. In State v. Koch, 75 W. Va. 648, an examination of the printed record discloses that state's instruction No. 1 contains the phrases which are here challenged. The Court said: "We see no error in this instruction." State v. Staley, 45 W. Va. 793, the same proposition appears in state's instruction No. 6. It was approved. The matter has, therefore, heretofore stood the test. We should not depart from settled precedent unless we are satisfied that such precedent is essentially erroneous. While this instruction may not be a model for clarity, it is not, in my judgment, prejudicially erroneous in a trial where the state's proof of the defendant's guilt is abundant and convincing.

The reasons why I do not think the court erred in refusing defendant's instructions Nos. 3, 4 and 17 (especially pointed out by defense counsel) are as follows: Number 3 is substantially covered by state's instruction No. 1 and defendant's instruction No. 5. Number 4 would have told the jury that one of the elements of the crime charged necessary to be proved by the state beyond all reasonable doubt was that the defendant converted to his own use the money described in the indictment "without any intention of making restitution thereof." Since it is settled law that restitution of embezzled property will not cure the crime, I do not perceive how, where money is misappropriated by an employee to his own use with intent to deprive the owner thereof, a latent intent to make restitution at some later date, existing in the mind of the accused at the time of the misappropriation can be deemed an efficient inoculation against criminality. "If S drew the money on the Avery check with the intention of using the same for his own purposes, and not for the liquidation of the Avery debt, though probably with the intention to return the same some future day, to the building association, he is guilty of the embezzlement of the check." Shinn v. The Commonwealth, 32 Gratt. 899, Syl. 7. The essential background of restitution, as applying to embezzlement, is that there has been absolute appropriation by the wrongdoer. There can be restitution only after complete misappropriation. Intent in the mind of an accused at the time of misappropriating another's property, to make restitution at some later time, therefore, means an advance purpose to return the property to the owner subsequent to the time that the misappropriation is consummated. I do not think that criminal conduct can be excused on any such refinement. It would enable an embezzler to exonerate himself by saying, "True, I took my employer's money and speculated with it, but it was my intention to make restitution." Of course, where an employee retains money of his employer without concealment or under a claim of right there is no criminal intent and consequently no embezzlement. But that is not the proposition in hand.

Number 17 reads: "The court further instructs the jury that if they believe from the evidence that the alleged confessions and admissions of defendant, to the respective witnesses who testified about them, are of a general nature and do not refer to names, dates and amounts as alleged in the indictment, or the Bill of Particulars, in this case, then the jury should not consider the same in arriving at their verdict." I do not think this instruction is correct, because it is at variance with settled law that on an indictment for embezzlement there may be proof of other transactions than those alleged in the indictment, for the purpose of establishing intent, plan, scheme or design on the part of the defendant, and to negative mistake.

I do not feel that the wholesome rule of law that a judgment of conviction will not be disturbed when the jury could not, under the evidence, properly have returned a different verdict constitutes a panacea for all sorts of error. It is a righteous rule, but I do not believe there is necessity for invoking it here.