Case Summary: State v. Ruben Cooper, No. 7030 (W. Va. Nov. 3, 1931)

Factual and Procedural Background

Ruben Cooper was indicted in Logan County on two counts: (1) felonious entering without breaking of a store building of the Tri-State Refining Company (a non-dwelling) with intent to commit larceny and the alleged actual taking of merchandise valued at $50.00; and (2) larceny of five "tires" valued at $50.00. Cooper interposed a general demurrer which the circuit court overruled. After trial the jury returned a general verdict, and Cooper was convicted and sentenced to five years' confinement in the penitentiary. He prosecuted an appeal in error to the Supreme Court of Appeals of West Virginia seeking reversal of the judgment.

Legal Issues Presented

Whether the trial court properly overruled the defendant's general demurrer given that the second count was defective in its description of the property alleged to have been stolen.
Whether a variance exists and is fatal where the indictment charges "entering without breaking" but the State's proof establishes a "breaking and entering."
Whether the evidence presented by the State was sufficient to support the conviction (i.e., whether the jury's acceptance of the State's witnesses' testimony requires affirmance).

Arguments of the Parties

Appellant's Arguments

The defendant interposed a general demurrer, asserting that the second count was defective in its description of the property (the word "tires" being insufficiently descriptive).
The defendant assigned as error that the State failed to prove an "entering without breaking," as charged, arguing that the proof showed breaking and entering rather than entering without breaking.
On the facts, the defendant denied the State's account: he denied telling the special constable that the automobile belonged to him, claimed he was not at the scene until mid-July, stated he was never in the Tri-State station, and offered Mary Ely's testimony in support of his account.

State's Arguments

The State relied on the sufficiency of the first count (entering without breaking with intent and alleged taking) and argued that the existence of one good count justified overruling a general demurrer.
The State presented evidence that the building had been broken into and that five Seiberling tires (bearing identifying tags which were removed) were taken; the tires were later located (three at the city hall and two on an automobile).
The State offered testimony that the defendant had been around the service station prior to the theft and that the defendant told the constable the automobile belonged to him and that he had bought the tires from a stranger.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Anable v. Com., 24 Gratt. 563	That it cannot be assumed "tires" refers only to automobile tires.	The court used this authority to support the conclusion that the second count was defective in description because "tires" was not sufficiently specific.
State v. McClung, 35 W. Va. 280	That allegation of actual larceny is not necessary in a count charging entering with intent; such allegation is merely in aid of alleging intent.	The court relied on this precedent to conclude the first count sufficiently charged the offense and that one good count supports overruling a general demurrer.
State v. Caddle, 35 W. Va. 73	Support for the proposition that the allegation of actual larceny need not be made with the same formality as a larceny count.	Applied to reinforce that the first count was sufficient despite the defective second count.
State v. Cartright, 20 W. Va. 32	That one good count is sufficient on a general demurrer.	Used to justify overruling the general demurrer because the first count was good.
Speer's Case, 17 Gratt. 570	That a general verdict is deemed a conviction of entering rather than larceny when counts differ.	The court invoked this authority to treat the general verdict as a conviction of the entering offense charged in the first count and not of the larceny charged in the second.
State v. Winans, 100 W. Va. 418	That where the jury disbelieves the defendant and credits the State's witnesses, the verdict must stand.	The court applied this principle to affirm the conviction because the jury chose to believe the State's witnesses over the defendant's testimony.

Court's Reasoning and Analysis

The court proceeded in several steps:

On the demurrer: The court observed the second count was defective for inadequate description of the property ("tires") and cited Anable v. Com. for that proposition. However, because the first count adequately charged an offense under section 13, chapter 145, Code 1923 (entering without breaking with intent to commit larceny), and because the allegation of actual larceny is not required with the same formality as a larceny count, the existence of one good count was sufficient to support overruling a general demurrer. The court cited State v. McClung, State v. Caddle, and State v. Cartright in support of these points, and noted statutory backing (section 23, chapter 159, Code 1923).
On the variance between pleading and proof: The court recognized the indictment charged "entering without breaking" while the State's proof showed a breaking and entering. The court considered these to be kindred offenses under sections 12 and 13, chapter 145, Code 1923. It held that evidence of a breaking and entering is sufficient to show an entering, and where entering is shown to have been done with the intent to commit larceny, that establishes a prima facie case of the offense charged. The court noted that although showing a breaking might be somewhat more difficult, the defendant could not complain of the proof offered.
On the sufficiency and weight of the evidence: The court summarized the State's proof from the preliminary hearing and trial: identification and return of the tires to the manager (Porter Lynn), testimony that the defendant and Leland Jones had been at the service station previously and had examined and priced the tires (which bore tags later removed), discovery of three tires at the city hall and two on an automobile, and the special constable's testimony that the defendant told him the automobile belonged to the defendant and that the tires had been purchased from a stranger. The defendant's testimony contradicted the State's account. The court observed that the jury chose to believe the State's witnesses, and under authority cited (State v. Winans) that determination must stand.

Holding and Implications

Judgment affirmed.

Implications:

The circuit court's conviction and five-year sentence of Ruben Cooper are upheld.
The court treated the general verdict as a conviction for entering (the valid first count) rather than for larceny (the defective second count).
The court held that proof of breaking and entering is not fatal when the indictment charges entering without breaking because breaking and entering are kindred offenses and proof of breaking establishes the entering with intent required for the charged offense.
The opinion does not announce or purport to establish a novel legal doctrine beyond applying existing authorities to the facts; its direct effect is to affirm the conviction on the record presented.

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STATE v. RUBEN COOPER

WOODS, JUDGE:

Ruben Cooper complains of a judgment of the circuit court of Logan County sentencing him to confinement in the penitentiary for a term of five years.

The indictment was in two counts. The first charged felonious entering without breaking of a certain store building of Tri-State Refining Company, the same not adjoining to or occupied with a dwelling house there situate, with intent to commit larceny and the actual taking of merchandise of the value of $50.00; the second, the larceny of five "tires" of the aforesaid value. The defendant interposed a general demurrer, which was overruled.

The second count, as pointed out by the defendant, is defective in its description of the property alleged to have been stolen. Even though this is an age of automobiles, it cannot be taken for granted that "tires" refers to automobile tires alone. Anable v. Com., 24 Gratt. 563. The first count sufficiently charged an offense under section 13, chapter 145, Code 1923. The allegation therein of actual larceny not being necessary, but merely in aid of intent, need not be made with the same formality as a count for larceny itself. State v. McClung, 35 W. Va. 280; State v. Caddle, 35 W. Va. 73. There being one good count, the general demurrer was properly overruled. State v. McClung, supra; State v. Cartright, 20 W. Va. 32. And the verdict being general, it is deemed a conviction of the offense of entering and not for larceny. State v. McClung, supra; Speer's Case, 17 Gratt. 570. Likewise, on a general demurrer, one good count is sufficient to support a verdict. Section 23, chapter 159, Code 1923.

The second assignment of error is that the state has failed to prove an entering without breaking, as alleged in the indictment. The evidence of the state is to the effect that there was a breaking and entering. Is this variance fatal? Breaking and entering, and entering without breaking, under the statute (secs. 12 and 13, chap. 145, Code 1923) are kindred offenses. While it might be a little more difficult to show a breaking, we are of opinion that the defendant cannot complain of such evidence, since the fact that there was a breaking and entering is sufficient to show an entering, which, when shown to have been done with the intent to commit larceny, establishes a prima facie case of the offense charged.

The defendant and one Leland Jones, after being apprehended in Mingo County, were arrainged before a justice in Logan County. At the preliminary hearing the tires, which were likewise found in Mingo County, were identified by, and returned to, Porter Lynn, the manager of the Tri-State Refining Company's service station. According to Lynn's testimony, the defendant and Jones had been around the service station a number of times during the two weeks immediately preceding the theft, and had bought oil and gas on various occasions. He also stated that both the defendant and Jones were in the tire room on the afternoon of June 29th or 30th, 1930, at which time they examined and priced the five Seiberling tires, each of which at that time had attached thereto a tag bearing a duplicate of its serial number; that the morning following the tires were gone; that the tags had been removed from the tires and left lying on the floor; that said tags were used in identifying the tires; that the building had been broken into. The special constable, who had been authorized to go to Williamson to get the defendant and Jones, found three of the tires at the city hall and two on an automobile. This witness stated that the defendant told him that the automobile belonged to him, and further, that he had bought the tires from a stranger. The evidence of the defense is in direct conflict with that offered on behalf of the state. Defendant denies telling the constable that he owned the car, and insists that it belonged to Jones. He states that he was not in the vicinity of the theft until the middle of July, at which time he, together with Mary Ely, rode to Williamson with Jones in the latter's car; that he was never in the Tri-State Refining Company's station. Mary Ely was the only other witness called for the defense. According to the defendant, Jones, who was jointly indicted within him, is now in Virginia. The jury saw fit to believe the state's witnesses in preference to the defendant and his witness. So far as the verdict is concerned, it must stand. State v. Winans, 100 W. Va. 418.

The judgment must be affirmed.

Judgment affirmed.

STATE v. COOPER