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STATE EX REL. KINCAID v. SPILLERS

No. 14694.

268 S.E.2d 137 (1980)

STATE ex rel. David KINCAID v. George L. SPILLERS, Judge, etc.

Supreme Court of Appeals of West Virginia.

July 15, 1980.

Attorney(s) appearing for the Case

O'Brien, Cassidy & Gallagher, William C. Gallagher, Wheeling, for relator.

Chauncey H. Browning, Atty. Gen., Victor A. Barone, Deputy Atty. Gen., Charleston, for respondent.

HARSHBARGER, Justice:

David Kincaid was indicted for burglary by an Ohio County grand jury, was tried, and was convicted on March 9, 1979. After his motion for a new trial was granted, he was retried and reconvicted on July 25, 1979. He then moved for a judgment of acquittal because of a fatal variance between the indictment and the proof. The motion was granted, and on August 29, 1979, the court entered the judgment; but after reconsidering, the trial court overruled...

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