Beowsiug, Judge:
Defendant, Ruth Maley, was indicted by the grand jury attending the January, 1965, term of the Intermediate Court of Kanawha County for the offense of, while a state officer or employee, making or causing to he made false entries in the written accounts kept by the state with the intention to conceal the true state of such accounts. A motion to quash the indictment and a joint demurrer and motion to quash were overruled; a motion that the judge disqualify himself was similarly overruled and the case proceeded to trial. The jury returned a verdict of guilty, motions to set aside the verdict and award a new trial on assigned errors and on the grounds of after discovered evidence were overruled and defendant was sentenced to a term of from one to ten years in the state prison for women, to which judgment, a writ of error having been refused by the Circuit Court of Kanawha County, this Court granted a writ of error and supersedeas on March 11, 1966.
The evidence shows that, subsequent to a flood in the month of July, 1961, Kanawha and six other counties were designated as disaster areas under Public Law 875. On August 1, 1961, defendant was employed to act as liaison between the federal and state agencies involved and to facilitate the work of the program. In connection with her duties she supervised the finance section of the program, that is, invoices for labor, equipment and materials used in the program were submitted to her section where they were checked against time sheets kept by her subordinates and, if accurate, a trasmittal order with the invoices attached was approved by her and processed for payment. It is not denied that she bore the responsibility for determining the accuracy of the transmittal sheet, which was used as a basis for payment and retained in the [595]*595files of the state auditor, and it is in connection with, several transmittal sheets, with attached invoices, which were introduced in evidence by the state that the present charges were brought. These transmittal sheets approved for payment certain invoices submitted by Belich Construction, Stanton Construction Co., and H. Lacey Company for work done on certain days. Time records, also introduced in evidence, kept by a time-keeper employed in defendant’s section, do not show any work by those companies on the days for which payment is claimed on the invoices. No contention is made by the state that the work was not done but only that, while the work was in fact done by Pioneer Construction Company, invoices were submitted in the names of the above mentioned companies at the instigation of defendant and approved by her on the transmittal sheets in order to conceal the true state of accounts.
In support of the charge, the state offered evidence of the above facts and also testimony that defendant made frequent appearances at the various job locations observing the equipment at work and that the time records were sometimes handed to her or placed on her desk by the timekeeper. Mr. Jim Stuckey, part owner and field supervisor of the Pioneer Construction Company, testified that he had frequent conversations with defendant and with regard to invoicing, defendant had told him that because of political pressure she could not approve an invoice amounting to more than $5,000.00 and suggested billing through other people. On cross-examination, the witness testified that Pioneer Construction Company leased equipment employed on the project from three other companies and subcontracted from others, and reiterated that defendant had first suggested billing in other people’s names and in subsequent conversations had stated to him: “Why don’t you bill it through your subcontractors'?” Mrs. Joyce Bass, secretary to Alex Dandy, a part owner of Pioneer Construction Company, testified that she prepared the Pioneer invoices, [596]*596as well as those for Belich, Stanton and Lacey at Mr. Dandy’s direction. Mrs. Bass stated that she talked by telephone with defendant on several occasions when there was a discrepancy between the time charged on the invoices and the time records in the defendant’s office and, on one occasion, an invoice which had been returned three or four times, was broken down into two or three different companies on the basis of work sheets supplied by Mr. Dandy. She then telephoned the defendant and “told her what piece of equipment I had on each invoice, and the amount of time, and she said it was O.K., or something of that nature.” The state offered other evidence that while only one Insley “backhoe” was used on the work the same appeared at various times on the invoices of Pioneer, Belich and Lacey.
For the defendant, Richard Wolfe testified that he was employed as bookkeeper or office supervisor; some invoices came to him and some to the defendant; he took the invoices, checked them against the timekeepers’ records and prepared transmittals, which he then submitted to the defendant; if there were discrepancies, he sometimes checked with the timekeeper and sometimes with the defendant; both he and defendant checked time records and sometimes persons working for Mm; he did not know who prepared the transmittals for the Belich, Stanton or Lacey invoices ; and, lie never saw defendant prepare a transmittal sheet. On cross-examination, Mr. Wolfe stated that he would have disallowed the invoices approved by the transmittals in evidence; he would have taken the discrepancies up with the defendant, if he had seen them; and, that he and the defendant had the responsibility to see that they were correct. On redirect the witness stated that someone in the office, the clerks, himself or defendant prepared the transmit-tals and if he or others had prepared them, the defendant only saw the transmittal and attached invoice, not the time sheets.
[597]*597Defendant testified as to her employment, and that: the finance section would compare invoices against the time records as they came in; if there was a discrepancy it was brought to her attention and, if not, a transmittal sheet was prepared in the finance section and with the attached invoices was submitted to her; she then checked the arithmetic and processed it for payment; it was suggested, previous to the dates of the transmittal involved that she initial the transmit-tals to show that she had seen them; she was responsible for the correctness of the transmittals but relied upon her staff; she did not remember a specific conversation with Stuckey, but did recall that a complaint was received from a person claiming to be a subcontractor of Pioneer that he had not received payment and she suggested to Pioneer that it permit its subcontractors to submit invoices in their own names; she did not recall any conversation with Mrs. Bass relating to Belich, Stanton or Lacey; and, she did not falsify or cause to be falsified any of the transmittal sheets in evidence. On cross-examination the defendant testified that she directed that an investigation be made of the facts relative to whether subcontractors were performing Pioneer’s work but no findings were ever reported to her directly. Defendant also offered by avowal the evidence that a federal audit was satisfactorily completed.
Eighteen errors are assigned in this Court but the assignment which gives the Court immediate concern is that questioning the sufficiency of the evidence. “In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state’s evidence is sufficient to convince impartial minds of the guilt of the accused beyond a reasonable doubt, though the evidence adduced by the accused is in conflict therewith.
Free access — add to your briefcase to read the full text and ask questions with AI
Beowsiug, Judge:
Defendant, Ruth Maley, was indicted by the grand jury attending the January, 1965, term of the Intermediate Court of Kanawha County for the offense of, while a state officer or employee, making or causing to he made false entries in the written accounts kept by the state with the intention to conceal the true state of such accounts. A motion to quash the indictment and a joint demurrer and motion to quash were overruled; a motion that the judge disqualify himself was similarly overruled and the case proceeded to trial. The jury returned a verdict of guilty, motions to set aside the verdict and award a new trial on assigned errors and on the grounds of after discovered evidence were overruled and defendant was sentenced to a term of from one to ten years in the state prison for women, to which judgment, a writ of error having been refused by the Circuit Court of Kanawha County, this Court granted a writ of error and supersedeas on March 11, 1966.
The evidence shows that, subsequent to a flood in the month of July, 1961, Kanawha and six other counties were designated as disaster areas under Public Law 875. On August 1, 1961, defendant was employed to act as liaison between the federal and state agencies involved and to facilitate the work of the program. In connection with her duties she supervised the finance section of the program, that is, invoices for labor, equipment and materials used in the program were submitted to her section where they were checked against time sheets kept by her subordinates and, if accurate, a trasmittal order with the invoices attached was approved by her and processed for payment. It is not denied that she bore the responsibility for determining the accuracy of the transmittal sheet, which was used as a basis for payment and retained in the [595]*595files of the state auditor, and it is in connection with, several transmittal sheets, with attached invoices, which were introduced in evidence by the state that the present charges were brought. These transmittal sheets approved for payment certain invoices submitted by Belich Construction, Stanton Construction Co., and H. Lacey Company for work done on certain days. Time records, also introduced in evidence, kept by a time-keeper employed in defendant’s section, do not show any work by those companies on the days for which payment is claimed on the invoices. No contention is made by the state that the work was not done but only that, while the work was in fact done by Pioneer Construction Company, invoices were submitted in the names of the above mentioned companies at the instigation of defendant and approved by her on the transmittal sheets in order to conceal the true state of accounts.
In support of the charge, the state offered evidence of the above facts and also testimony that defendant made frequent appearances at the various job locations observing the equipment at work and that the time records were sometimes handed to her or placed on her desk by the timekeeper. Mr. Jim Stuckey, part owner and field supervisor of the Pioneer Construction Company, testified that he had frequent conversations with defendant and with regard to invoicing, defendant had told him that because of political pressure she could not approve an invoice amounting to more than $5,000.00 and suggested billing through other people. On cross-examination, the witness testified that Pioneer Construction Company leased equipment employed on the project from three other companies and subcontracted from others, and reiterated that defendant had first suggested billing in other people’s names and in subsequent conversations had stated to him: “Why don’t you bill it through your subcontractors'?” Mrs. Joyce Bass, secretary to Alex Dandy, a part owner of Pioneer Construction Company, testified that she prepared the Pioneer invoices, [596]*596as well as those for Belich, Stanton and Lacey at Mr. Dandy’s direction. Mrs. Bass stated that she talked by telephone with defendant on several occasions when there was a discrepancy between the time charged on the invoices and the time records in the defendant’s office and, on one occasion, an invoice which had been returned three or four times, was broken down into two or three different companies on the basis of work sheets supplied by Mr. Dandy. She then telephoned the defendant and “told her what piece of equipment I had on each invoice, and the amount of time, and she said it was O.K., or something of that nature.” The state offered other evidence that while only one Insley “backhoe” was used on the work the same appeared at various times on the invoices of Pioneer, Belich and Lacey.
For the defendant, Richard Wolfe testified that he was employed as bookkeeper or office supervisor; some invoices came to him and some to the defendant; he took the invoices, checked them against the timekeepers’ records and prepared transmittals, which he then submitted to the defendant; if there were discrepancies, he sometimes checked with the timekeeper and sometimes with the defendant; both he and defendant checked time records and sometimes persons working for Mm; he did not know who prepared the transmittals for the Belich, Stanton or Lacey invoices ; and, lie never saw defendant prepare a transmittal sheet. On cross-examination, Mr. Wolfe stated that he would have disallowed the invoices approved by the transmittals in evidence; he would have taken the discrepancies up with the defendant, if he had seen them; and, that he and the defendant had the responsibility to see that they were correct. On redirect the witness stated that someone in the office, the clerks, himself or defendant prepared the transmit-tals and if he or others had prepared them, the defendant only saw the transmittal and attached invoice, not the time sheets.
[597]*597Defendant testified as to her employment, and that: the finance section would compare invoices against the time records as they came in; if there was a discrepancy it was brought to her attention and, if not, a transmittal sheet was prepared in the finance section and with the attached invoices was submitted to her; she then checked the arithmetic and processed it for payment; it was suggested, previous to the dates of the transmittal involved that she initial the transmit-tals to show that she had seen them; she was responsible for the correctness of the transmittals but relied upon her staff; she did not remember a specific conversation with Stuckey, but did recall that a complaint was received from a person claiming to be a subcontractor of Pioneer that he had not received payment and she suggested to Pioneer that it permit its subcontractors to submit invoices in their own names; she did not recall any conversation with Mrs. Bass relating to Belich, Stanton or Lacey; and, she did not falsify or cause to be falsified any of the transmittal sheets in evidence. On cross-examination the defendant testified that she directed that an investigation be made of the facts relative to whether subcontractors were performing Pioneer’s work but no findings were ever reported to her directly. Defendant also offered by avowal the evidence that a federal audit was satisfactorily completed.
Eighteen errors are assigned in this Court but the assignment which gives the Court immediate concern is that questioning the sufficiency of the evidence. “In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state’s evidence is sufficient to convince impartial minds of the guilt of the accused beyond a reasonable doubt, though the evidence adduced by the accused is in conflict therewith. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.” Syl. Pt. 1, State [598]*598v. Bowles, 117 W. Va. 217, 185 S. E. 205; State v. Stevenson, 147 W. Va. 211, 127 S. E. 2d 638; State v. Etchell, 147 W. Va. 338, 127 S. E. 2d 609; State v. Spradley, 140 W. Va. 314, 84 S. E. 2d 156; and cases cited therein. A new trial will not he granted in a criminal case on the ground of insufficiency of the evidence, where the verdict is based on oral testimony and involves the credibility of the witnesses. State v. Spradley, 140 W. Va. 314, 84 S. E. 2d 156; State v. Stowers, 66 W. Va. 198, 66 S. E. 323. “If a new trial depends upon the weight of testimony or inferences from it, the jury are exclusively and almost uncontrollably the judges.” Syl. Pt. 1, State v. Etchell, 147 W. Va. 338, 127 S. E. 2d 609. However, the law requires the state in a criminal case to establish the guilt of a defendant, by competent evidence, beyond a reasonable doubt. State v. Hudson, 128 W. Va. 655, 37 S. E. 2d 553, 163 A.L.R. 1265. While a conviction may rest entirely upon circumstantial evidence, State v. Sheppard, 49 W. Va. 582, 39 S. E. 676, such evidence must be consistent with the hypothesis of guilt and exclude every other reasonable hypothesis of innocence. “To convict on circumstantial evidence alone, it should to a moral certainty exclude every hypothesis but that of guilt; and circumstantial evidence should always be scanned with caution.” Syl. Pt. 2, State v. Bennett, 93 W. Va. 548, 117 S. E. 371. Suspicion alone, however strong, is not enough, State v. Dudley, 96 W. Va. 481, 123 S. E. 241, and “When two inferences, equally plausible, may be drawn from the evidence, the law does not permit the jury to adopt the one more unfavorable to the accused. ...” Syl., State v. Kelly, 105 W. Va. 124, 141 S. E. 633. Applying these principles to the case at bar leads us to the conclusion that the evidence is insufficient to justify or sustain the verdict of guilt rendered against the defendant.
To summarize briefly the circumstances which may be presumed to have been established by the state tending to show a culpability on the part of the de[599]*599fendant: she was the person ultimately responsible for the accuracy of the transmittals; the time sheets, in most, hut not all, instances were given to her or placed on her desk; she suggested to Stuckey that hillings he made in the name of other persons or subcontractors ; Mr. Wolfe stated that he did not prepare the transmittals in evidence, and would have disallowed the invoices involved, although he also states that he never observed the defendant prepare a transmittal sheet and that others in the office did so; and, Mrs. Bass stated that, after one particular invoice had been rejected for some error in time or arithmetic on several occasions, she, on instructions and information supplied by Mr. Dandy, prepared invoices in the names of Stanton and Lacey, telephoned the defendant and informed her of the times and equipment allotted to those companies to which the defendant replied: “O.K.”; she also testified that a Belich invoice was returned because of a one dollar error in arithmetic. When considered together, do these circustances point unerringly to defendant’s guilt? We do not believe so. The defendant was charged with the supervisory duties of an office or section in which Mr. Wolfe and others were employed and it is uncontroverted that others in the office besides Mr. Wolfe and the defendant prepared transmittals, in which case, the defendant saw only the transmittals and invoices, not the time sheets. In such cases, the defendant would have had no opportunity to do anything but ascertain that the arithmetic on the invoices was correct, which is consistent with the testimony of Mrs. Bass in regard to her telephone conversations with the defendant previous to the conversation as to the Stanton and Lacey invoices. Her suggestion to Stuckey is susceptible of two inferences, one of guilty intent and one entirely innocent. Leased or subcontracted equipment, which Mr. Stuckey admits was used by Pioneer, would ordinarily bear the owner’s identification and if, as testified to by Mr. Houck and Mr. Stuckey, defendant was frequently at the job locations, it could be reason[600]*600ably inferred that she observed tbis fact. The same applies to her conversation with Mrs. Bass at the time of the Stanton and Lacey invoices. There is no evidence to show that defendant at that time was aware, or should have been aware, that Stanton and Lacey had done no work on the program, had before her the time sheets for the dates involved, or took any subsequent action with regard to those invoices at a time when she should have been aware of their falsity. The evidence is that she answered the telephone, was told that Stanton and Lacey invoices had been prepared with certain pieces of equipment at so many hours, to which she replied, "O.K.”
In short, there is no evidence in this case which is not as susceptible of the hypothesis of defendant’s innocence as that of her guilt. Admittedly, the circumstances set forth create strong suspicion but, as heretofore said, suspicion, however strong, is not enough. Such circumstances must, to a moral certainty, exclude every hypothesis save that of guilt and where two inferences may be drawn, equally plausible, the law does not permit the jury to adopt the one more unfavorable to the accused.
As the evidence does not establish the guilt of the defendant beyond a reasonable doubt, the verdict should have been set aside by the trial court and its action in failing to do so constituted reversible error. As the case must be remanded for a new trial, we need not discuss the other assignments of error pertaining to the trial of the case. Those pertaining to preliminary questions we find without merit. The judgments of the circuit court and the intermediate court are reversed, the verdict of the jury is set aside, and the case is remanded to the Intermediate Court of Kanawha County for a new trial.
Reversed; verdict set aside; new trial awarded.