State Or West Va. v. McCallister, (No. 7044)
| Decision Date | 26 January 1932 |
| Docket Number | (No. 7044) |
| Citation | 111 W.Va. 440 |
| Court | West Virginia Supreme Court |
| Parties | State or West Virginia v. Noah McCallister |
Assault and Battery
Where one without fault is assaulted he may shoot or wound his adversary in defense of his person without retreating if he has reason to believe and does believe that there is design, on the part of his adversary to take his life or do him great bodily harm. But he does so at his peril, for it is a question for the jury to determine the necessity of such shooting under all the evidence and circumstances. The necessity for killing or wounding in self-defense presents a question for jury determination. State V. Cain, 20 W. Va. 679.
Error to Circuit Court, Putnam County.
Noah McCallister was convicted of unlawful shooting and wounding, and he brings error.
Affirmed.
C. E. Copen, for plaintiff in error.
Howard B. Lee, Attorney General, and W. Elliott Nefflen, Assistant Attorney General, for the State.
Noah McCallister, sentenced to two and one-half years' confinement in the penitentiary upon conviction of unlawful shooting and wounding, prosecutes error, charging that the evidence does not warrant the verdict.
The altercation occurred along the paved, highway between Winfield and Pliny in Putnam county. McCallister was walking towards Pliny and met Orris Jordan, the prosecuting witness, who was driving his car in the opposite direction. Jordan stated that McCallister motioned for him to stop; he did so and asked McCallister, who had been doing some farm work for him, if he intended to work that day, whereupon McCallister, answering in the negative, accused Jordan of telling "lies" on him. Jordan left his car and struck McCallister several blows with his fist until the latter requested Jordan to quit; and he did so. Jordan, after admonishing McCallister, who already was walking towards Pliny, to "be careful who you call a liar from now on," returned to his ear. (One witness testified that Jordan told defendant if he called him a liar again, "I11 beat the head off of you.")
According to McCallister, Jordan laughed and swore at him in vile terms. Jordan relates that, as he was about to enter his ear, he heard McCallister make an inaudible remark, that he requested a repetition, that McCallister said "I'll settle with you latter," to which he replied, "You had better come and settle it now." About this time, McCallister, who had walked to a point about 100 feet (some witnesses say 60 to 75 feet) from Jordan's car, displayed his revolver. There is a dispute as to whether McCallister shot before Jordan stooped for the apparent purpose of picking up a gravel, or whether, as McCallister puts it, Jordan stooped and "I fired two shots at his hand." In all, five shots were fired. After each of the first three shots, Jordan advanced toward McCallister, who had stationed himself at the berm of the road. Just before Jordan reached McCallister, who had already fired three shots, a bullet struck Jordan's side. Jordan then struck McCallister with his fist, grabbed his right hand, and attempted to get the gun from McCallister who, holding it with both hands, fired again, and again the bullet struck Jordan below the stomach. Wounded, Jordan grabbed McCallister, and the latter, jerking Jordan over the edge of the road, became entangled in a wire fence which caused him to fall and thus to release Jordan.
McCallister says lie warned Jordan as the latter advanced that one of them would be injured if Jordan continued to come towards him. This Jordan denies. McCallister further states, and Jordan denies, that Jordan had a knife in his hands; that he (McCallister) "saw he was trying to use it," and that Jordan said, "I will kill you." As contradictory of Jordan's version, McCallister states that he shoved Jordan from him and that instead of jerking Jordan with him over the edge of the road, Jordan followed him to the fence. McCallister had no license to carry his gun but explained there "were two men that threatened" him. The state adduced evidence to the effect that prior to the shooting, McCallister had said that Jordan "had been telling certain things on him and that he, McCallister, was going to get him for it."
It is the contention of the defense that Jordan was the aggressor, that McCallister was without fault, and that he shot in self-defense. The determination of who was the aggressor becomes subordinated to the controlling issue of McCallister's justification for shooting. Assuming, without deciding, that McCallister was not the aggressor, the rule has been well settled in this jurisdiction since State v. Cain, 20 W. Va. 679 (1882), that when one without fault is attacked by another in such a manner or under such circumstances as to furnish reasonable grounds for apprehending a design to take away his life or to do him some great bodily harm, and there is reasonable ground for believing the danger imminent that such design will be accomplished, and the person assuited has reasonable ground to believe and does believe such danger is imminent, he may act upon such appearances and without retreating, kill his assilant, if he has reasonable grounds to believe, and does believe, that such killing is necessary in order to avoid the apprent danger; and the killing under such circumstances is excusable, although it may afterwards turn out, that the appearances were false, and that there was in fact neither design to do him some serious injury nor danger, that it would be done. But of all this the jury must judge from all the evidence and circumstances of the ease. As to the imminency of the danger, which threatened the prisoner, and the necessity of the killing in the first instance the prisoner is the judge; but he acts at his peril, as the jury must pass upon his action in the premises, viewing said actions from the prisoner's standpoint at the time of the killing. The same rule prevails where there is an unlawful shooting and wounding.
The jury's verdict negatives the imminency of danger, and we see no reason to disturb its finding. It has chosen to accept Jordan's version of the affray supplemented by several eye witnesses. Hence, on a motion to set aside a verdict of the jury on the...
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