State Of West Va. v. Sibert, (No. 7077)
| Decision Date | 07 March 1933 |
| Docket Number | (No. 7077) |
| Citation | 113 W.Va. 717 |
| Court | West Virginia Supreme Court |
| Parties | State of West Virginia v. F. W. Sibert |
1. Criminal Law
Whether a particular blackboard sketch may be exhibited before the jury in connection with the prosecuting attorney's opening statement, as well as in the examination of state's witnesses, is largely within the discretion of the trial court.
2. Instructions
Where one instruction has been given, fully covering a principle of law applicable to the case, it is not error to refuse another instruction to the same effect, although differently expressed.
3. Instructions
An instruction relating to the unanimity of the jury verdict, which is couched in such terms as would invite the jury to disagree, is properly refused.
Error to Circuit Court, Kanawha County.
F. W. Sibert was convicted of involuntary manslaughter. To review a judgment of the circuit court refusing a writ of error to the intermediate court of Kanawha county, the defendant brings error.
Affirmed.
Lilly & Lilly, for plaintiff in error.
H. B. Lee, Attorney General, and W. Elliott Nefflen, Assistant Attorney General, for the State.
Defendant, who was found guilty of involuntary manslaughter, and sentenced by the intermediate court of Kanawha county to one year's imprisonment in the county jail, and fined, complains of the judgment of the circuit court of said county in refusing a writ of error.
The accident, in which Donald Lee Bush of Huntington, W. Va., met his death, and out of which this criminal proceeding arose, occurred on the Midland Trail, a few miles east of St. Albans, about 1:30 a. m., February 12, 1930. The highway is substantially straight for quite a distance in each direction from the point of the accident. The hard surface is twenty feet wide. Defendant and a young lady were returning to Charleston, in a Buiek coupe; and Bush, with two companions, to Huntington. The latter were in a Maxwell touring car all in the front seat, with Bush in the middle.
The surviving occupants of the touring car testified that the defendant, driving at the rate of 55 to 60 miles per hour, drove the coupe two feet over the center line and struck their ear. between its center and rear. Defendant places his speed at 35 miles per hour; and states that the touring car was over on his side, and that the coupe was hit between the left front door and the left front wheel about widways.
Witness Manseur, who was awakened by the crash, testified that he saw a scar on the road beginning about one foot south of the center line, and extending across the center in the direction of the Buick, which had crossed the road and ran into a bank one hundred thirty feet distant. The chief of police and a justice of the peace from St. Albans arrived at the scene of the accident around three o'clock. They testified that owing to the heavy frost they were able to see certain "scars" or markings on the roadway, which indicated that a portion of the Buick was on the wrong side at the time of the impact. The justice stated that one could see rubber marks eighteen to twenty-four inches in length where the touring car had slid before it commenced turning; and that such marks were eighteen to twenty-four inches north of the center line. The policeman testified that there was considerable dirt, grease, splinters, and things like that, at the point of impact; and that there was an impression in the hard surface, eight inches north of the center line, where the left front wheel of the Buick had dropped down, after the tire and rim had been torn off. The touring ear went something like 81 feet, having rolled practically all that distance.
The night mechanic of the Grove Motor Company, who towed the Buick in, and the mechanic who worked on. the ear. testified as to its condition. The latter was unable to swear in his opinion that the Buick was struck, stating that in moving forward the coupe either struck or was struck by some object. It appears that the left fender of the Buick was bent where it connects with the running board; and that the running board was bent; a dent in the door and back fender; tire and rim torn off the left front wheel, and the wheel bent, back sideways; the frame bent where wheel connects with steering wheel. And. according to the defendant, the touring car was so badly demolished that one could not tell anything about what happened from an examination of it. There was some evidence, although not very substantial, intimating that the occupants of each car may have been drinking. On this state of the record, in the absence of other error, the jury verdict is final. State v. Winans, 100 W. Va. 418, 130 S. B. 607.
It appeal's from the record that a crude chalk drawing, purporting to show various points and objects, including the road at the point of the accident, as well as east and west thereof, was placed on the blackboard back of the witness stand prior to the commencement of the trial. This drawing, over defendant's objection and exception, was referred to by the prosecuting attorney in his opening statement, and later in the examination of state's witnesses. The prosecutor, in his initial reference thereto, told the jury that it was "a rough sketch showing approximately the point of accident". The sketch, as shown in a photograph thereof, made part of bill of exceptions No. 3, shows a reverse curve (right to left) some distance to the west of the point of the accident, while the two photographs (introduced in evidence) show a general curve to the left. Upon cross-examination of state's last witnesses (and after the introduction of the first photograph in evidence) as to whether or not, in view of the discrepancy, the illustration was a true one, the prosecuting attorney stated that the plaintiff had never so claimed. Whereupon, defendant's counsel replied: ...
To continue reading
Request your trial
-
Riddle v. Baltimore & O. R. Co., 10459
... ... 733, 34 A.L.R.2d 1228 ... BALTIMORE & O. R. CO ... No. 10459 ... Supreme Court of Appeals of West Virginia ... In the case law of this State the distinction between permanent damages and temporary ... [137 W.Va. 762] State v. Sibert, 113 W.Va. 717, 169 S.E. 410. If the requirement of ... ...
-
State v. Taft, 11035
...110 S.E.2d 727 ... 144 W.Va. 704 ... STATE of West Virginia ... Burl H. TAFT ... No. 11035 ... Supreme Court of Appeals of ... Sibert, 113 W.Va. 717, 169 S.E. 410, a similar instruction was refused because it ... ...
-
State v. Nuckols
...to possess, and that explanatory charts, maps, may be testified from even though not actually introduced as an exhibit. State v. Sibert, 113 W.Va. 717, 169 S.E. 410; Lewis v. Mosorjak, 143 W.Va. 648, 104 S.E.2d 294. Any discrepancies claimed by the defendant would be corrected on cross exam......
-
State v. Cokeley
...to unanimity of a jury verdict couched in such language as to invite the jury to disagree, are properly refused. State v. Sibert, 113 W.Va. 717, 169 S.E. 410 (1933). Further, such instructions contain principles generally understood by jurors and the refusal to give the instruction will ver......