State Of West Va. v. Thompson

• Decision Date: 15 August 1882
• Citation: 21 W.Va. 741
• Parties: State of West Virginia v. Wade H. Thompson.
• Court: West Virginia Supreme Court

21 W.Va. 741

State of West Virginia

v.Wade H. Thompson.

Supreme Court of Appeals of West Virginia.

Submitted August 15, 1882-Decided December 16, 1882.

1. A bill of exceptions in a criminal case, upon the refusal of the court to grant a new trial on the ground, that the verdict is contrary to the evidence, certifies all the evidence and all the evidence for the prisoner is in conflict with that of the State so, that it is impossible that both can be true, the appellate court will reject all the evidence of the prisoner and look only to that of the State, (p. 754.)

2. In reviewing the judgment of the court below in such cases, the appellate court will not reverse the judgment of the court below on the ground, that there is a doubt of its correctness; but it must be satisfied that the evidence is plainly insufficient to warrant the verdict, (p. 755.)

3. The courts of this State are peculiarly jealous of any encroachment by the court on the province of the jury, and it is error for a court in the trial of a case, to intimate any opinion in refer- ence to matters of fact, which might in any degree influence the verdict nor can the court instruct the jury as to the weight to be given by them to the evidence of any witness, whether the witness be impeached or not, or whether he is contradicted as to material facts or not. The jury are the exclusive judges of the weight to be attached to the evidence of any witness, and the court would err in influencing them in any way in determining this weight, either by instruction as to the proper manner of ascertaining such weight, or otherwise, (p. 756.)

4. A court ought not to grant an instruction irrelevant to the ease, though as a proposition of law it may be in the abstract right, (p. 760.)

Writ of error to a judgment of the circuit court of the county of Wayne, rendered on the 11th day of July, 1881, upon an indictment for murder against Wade H. Thompson, allowed upon the petition of said Thompson.

Thomas IT. Harvey, special judge, rendered the judgment complained of.

Green, Judge, furnishes the following statement of the case:

On March 4, 1878, the grand jury of Wayne county was formed and duly sworn, and on March 6, 1878, found an indictment against Wade H. Thompson, for the murder of Alonzo McCoy on December 18, 1877. He had not been previously arrested, but immediately appeared in person and moved the court to quash the indictment, and also pleaded not guilty, and issue was joined and the case continued.

Two years afterwrards, on March 4, 1880, the prisoner Wade H. Thompson was set to the bar in the custody of the sheriff, and the court overruled the motion to quash the indictment and the case was continued. And at a regular term of the court, on June 30, 1881, Ira J. McGinnis, the judge of the court opened the same, and at 12 o'clock the court took a recess till 2 o'clock p. m. of that day. But the judge failed to return to the court-room again at the appointed time to hold and continue said court, and the members of the bar present and practicing in the court, proceeded to elect a judge by ballot, to hold and continue said court during the absence of the judge.

The election was held by the clerk of the court and he declared, that.Thomas II. Harvey a practicing attorney of the court, was duly elected as provided for by the statute law. And thereupon he took the several oaths required by law as such judge, and entered upon the discharge of the duties ot his office; all of which was entered in the record book ot the court. The prisoner, Wade II. Thompson, was set in the bar in the custody of the sheriff of the county, and a jury was elected, tried and sworn to well and truly try and true deliverance make between the State and Wade H. Thompson the prisoner at the bar, whom they should have in charge and a true verdict render according to the evidence. A part of the evidence was heard and the case was regularly and properly continued from day to day, and having been completed and committed to the jury on July 8, 1881, they rendered their verdict as follows:" We the jury agree and find the defendant Wade II. Thompson, guilty of murder in the second degree, as charged in the within indictment, and ascertain and fix his period of confinement in the penitentiary for the period of five years."

The prisoner moved the court to set aside the verdict, as contrary to the law and evidence, for improper conduct on the part of the jurors, and because the jurors were disqualfied. And on the 15th day of July, 1881, no evidence having been offered to sustain the two last named grounds for a newT trial, the court overruled the motion for a new trial, and in accordance with the verdict rendered ajudgment whereby it sentenced the prisoner to be confined in the penitentiary for five years. From this judgment this Court has awarded a writ of error.

Three bills of exceptions taken during the trial, were signed and sealed by the presiding judge and made a part of the record. The first bill of exception sets out all the evidence in the case, and was an exception to the refusal of the court to grant the prisoner a new trial. The second exception was to the court's permitting, against the objection of the prisoner, five different questions to be propounded to witnesses and their answers, to go as evidence to the jury. What is deemed necessary to state in reference to these questions and answers, will be stated in the opinion. The last exception was to instructions given and refused by the court and was as follows:

Instruction No. 3.

" The court instructs the jury that it they are satisfied from the evidence that William Patterson, Esther Patterson, Harvey Patterson, Alfred Allen, Moses Hunt and Rebecca Hunt, witnesses for the State, or either or any of them, have or has willfully and knowingly swore falsely as to any tact or matter material to the issue involved in tins case, that the jury are to disregard each and every other material tact swTorn toon this trial by each and every of the said witnesses whom they are so satisfied have sworn falsely as aforesaid, except so far as they may be further satisfied from the evidence that the other material fact or facts so sworn to by each witness or witnesses has or have been corroborated by other creditable evidence in the case."

Instruction No. 5.

" The court instructs the jury that if they are satisfied from the evidence that the deceased, Alonzo McCoy, had shot one Moses Hunt jr., shortly before his death, and that the said Hunt complained of such shooting to and in the presence of the several persons named by the witness, Rebecca Hunt, and William Foftner, at the house of John Thompson, and desired them to arrest said McCoy therefor, and that the said persons so complained to had come to believe and did believe that the said McCoy had been and was guilty ot a felony in and by such shooting, and that in pursuance of such request and belief they went to the house of William Patterson for the sole purpose of arresting said McCoy without a warrant issued by any officer for that purpose, that the said persons, and each of them, had the right under the law to arrest the said McCoy for the said offense so charged against him, although they had no warrant or authority for making such arrest except the general authority which the law gave them."

Instruction No. 6.

"The court instructs the jury that the evidence in this case is not sufficient in law to authorize them to presume or find that the prisoner, Wade Thompson, conspired with others to murder Alonzo McCoy.'- Instruction No. 8.

M The court instructs the jury that if they believe from the evidence that the witness, William Patterson, was a witness before the grand jury and testified against the prisoner and Others in relation to the charge contained in this indictment, and that the evidence he gave before the grand jury as to said charge was and is materially different in any material matter connected therewith from the evidence he gave on this trial or to the same matters, and if they further believe from the evidence that the said Patterson gave evidence on the former trial of this case, or made statements out of court relating to the issues in this case, materially different to what he has sworn to on this trial, and that he was interrogated as to such evidence and statements on this trial and denied having made them, or to have so sworn differently, and if they further believe from the evidence that the said Patterson has, in his evidence on tins trial, made false and contradictory statements as to any matter or matters material to the issue in this case, that then and in that event the jury are to take in consideration all such evidence, statements and contradictions in determining the degree of credit to be given to the evidence of said Patterson on this trial. And if they believe therefrom, or from any other evidence given by him or others on this trial, that he is unworthy of credit, they have the right to disregard his evidence in this trial."

Instruction No 9.

"The court instructs the jury that if they believe from the evidence that the witnesses, Esther Patterson, Harvey Patterson, Alfred Allen and Rebecca Hunt, were sworn and examined as witnesses for the State on the former trial of this case, and that they, or any of them, testified on that trial, or to any matter or fact material to the issue in this case, differently from the evidence given by them, or either of them, in relation to the same matter or fact on this trial, and that they, or any of'them, have made contradictory statements in their evidence in this case in relation to any matter or fact material to the issue in this cause on this trial, then and in that event the jury are to consider such contradictory statements and evidence in determining the degree of credit to be given to any such witness. And if they believe from such evidence, and from any other evidence in this case, that any such witness is unworthy of...