
    State of West Virginia v. Roy Leatherwood
    (No. 7139)
    Submitted May 17, 1932.
    Decided May 24, 1932.
    
      Hubbard & Bacon, for plaintiff in error.
    
      H. B. Lee, Attorney General, and W. Elliott Nefflen, Assistant Attorney General, for the State.
   Hatcher, PresideNT:

Defendant was convicted of participating in tbe robbery of a gasoline filling station. lie seeks reversal, charging insufficiency of tbe evidence to sustain conviction and error in tbe admission of evidence, and in an instruction given at tbe instance of tbe state.

Tbe attendant of the filling station positively identified the accused as one of two unmasked robbers, who with drawn pistols forced him to surrender tbe money of tbe station. There were also circumstances corroborating tbe attendant. Tbe accused denied any connection whatever with tbe robbery and attempted to prove an alibi. Tbe conflict in tbe evidence was a jury question. Tbe evidence offered by- tbe state is ample to sustain tbe verdict.

Evidence was introduced tending to show that three days after the robbery a certain revolver was fired near a public resort and then thrown away either by defendant or a companion who was an alleged accomplice in tbe robbery. The revolver was not identified as one bad by tbe robbers, or even shown to be similar in appearance to either of tbe revolvers presented by them. This evidence does not tend to establish tbe specific crime charged and was therefore inadmissible. “Tbe test of tbe admissibility of evidence of a subsequent offense is, does proof of tbe subsequent act have some logical connection with and tend to establish tbe specific crime charged.” State v. Adkins, 109 W. Va. 579, 155 S. E. 669, (see authorities cited p. 581). Tbe evidence of tbe subsequent offense tended to show that tbe accused was a lawless character, and was therefore prejudicial.

Tbe instruction complained of follows: “Tbe Court instructs tbe Jury that robbery is feloniously and forcibly taking from tbe person of another goods or money of any value by violence or by putting in fear and tbe Court further instructs tbe Jury that, if you believe beyond a reasonable doubt, that tbe defendant, Roy Leatherwood by himself or in company with Odell MeGaha did on tbe 11th day of March, 1931, feloniously and forcibly by putting Aubrey Biggs in fear, take from tbe said Aubrey Biggs tbe sum óf seventeen dollars, then yon are instructed to find the defendant, Roy Leatberwood, guilty as charged in the indictment.”

The indictment charges that the robbery was accomplished by means of a dangerous and deadly weapon. This instruction would be more apt if it followed the charge in the indictment. The instruction omits the animus furandi. It would be more complete if the element of intent were included. The instruction is therefore imperfect, though not essentially prejudicial, and should be corrected upon another trial.

For the error in admitting evidence as to the subsequent offense, the judgment is reversed, the verdict set aside, and a new trial awarded the accused.

Reversed,; verdict set aside; new trial awarded.  