State v. Ballard

• Decision Date: 22 March 1904
• Citation: 47 S.E. 148,55 W.Va. 379
• Parties: STATE v. BALLARD.
• Court: West Virginia Supreme Court

47 S.E. 148

55 W.Va. 379

STATE v. BALLARD.

Supreme Court of Appeals of West Virginia.

March 22, 1904

Submitted March 8, 1904

Syllabus by the Court.

1. B is indicted for the unlawful and felonious attempt to feloniously, willfully, maliciously, deliberately, and unlawfully slay, kill, and murder K. The jury found B. guilty of an attempt to commit murder in the second degree, as charged in the indictment. The facts and circumstances prove that, if the pistol shot, alleged in the indictment, and fired by B. at K., but which did not strike him, had resulted fatally to K., B. would not have been guilty of either murder of the first degree, murder of the second degree, or voluntary manslaughter.

Held, that the verdict of the jury and judgment of the court thereon, fixing the fine of defendant at $50, and imposing upon him imprisonment in the county jail for the period of six months, are erroneous.

Error to Circuit Court, Boone County; J. M. Sanders, Judge.

O. M Ballard was convicted of assault with intent to kill, and brings error. Reversed.

W. L Ashby, for plaintiff in error.

L. Fuller, Atty. Gen., for the State.

MILLER J.

At the October term, 1902, of the circuit court of Boone county, O. M. Ballard, the plaintiff in error, was indicted for the unlawful and felonious attempt to feloniously, willfully, maliciously, deliberately, and unlawfully slay, kill, and murder one H. H. Kessinger. At the same term he entered his plea of not guilty to the indictment and was put upon his trial before a jury, which returned the following verdict: "We, the jury, find the prisoner, O. M. Ballard, guilty of an attempt to commit murder in the second degree, as charged in the within indictment." Thereupon the prisoner, by his attorney, moved the court in arrest of judgment, and also to set aside the verdict of the jury, and to grant him a new trial upon the indictment; but the court overruled said motions, and the prisoner excepted; whereupon the court fixed his fine at $50, imposed imprisonment upon him for a period of six months in the county jail, and entered judgment upon said verdict accordingly. To this judgment the plaintiff in error was granted a writ of error, and says that the evidence in the case wholly fails to sustain the verdict of the jury and the judgment thereon, and prays the reversal of said judgment.

The evidence adduced on the trial is certified and made part of the record, and proves the following facts: On the 15th day of August, 1902, at a church in said county, between four and five miles from the home of said Kessinger, and a greater distance from the residence of Ballard, the two had some hot and disrespectful words, and a threat on the part of Ballard to fight Kessinger is shown. Some time afterwards the parties, with others, but not together, started homeward both traveling in the same direction and over the same road. It appears that Kessinger and some others were at first in the advance, but that Ballard and another young man passed them on the road. Shortly after this, Kessinger quickened the pace of the mule upon which he was riding, and overtook Ballard, who was on horseback. Kessinger testifies that he then told Ballard "to get off his horse, and let us have a fair fight with our fists, and have it out there. *** I called him a few names." He admits that, in order to overtake Ballard, he racked and trotted his mule, and might have loped him some. He also says that he cursed and abused Ballard, and told him to get down and fight, and says that he might have called him "a s____ of a b______, or something like that;" and further admits that, when he started his mule in a rack, he meant to overtake Ballard, and "allowed that we might have a little fair fight, and there would be no more of it. I told him that's the way I wanted to fight." It is also shown that, just before Ballard and Kessinger reached the place of the shooting on the public road, Kessinger dismounted, and said to Ballard that he intended to whip him; but Ballard told him that he was not going to get off; that very soon thereafter Kessinger threw a rock, which struck Ballard on the side of the head, knocking off his hat and hurting Ballard, as he says, a great deal; and a little later Kessinger threw a second rock, which struck Ballard in the back. Kessinger then advanced toward Ballard a few steps, when Ballard turned in his saddle, without stopping his horse, which he says was in a little trot, and fired his postol in the direction of Kessinger. There is no dispute about the throwing of the rocks by Kessinger, or of their striking Ballard as stated. Kessinger admits that he threw the rocks before the shooting, and that it all occurred in a few seconds. Ballard swears that when he fired he neither stopped his horse nor slowed him up; that he shot in the direction of Kessinger after he received the stroke from the second rock; that he shot because he was afraid...