State v. Banks

• Court: West Virginia Supreme Court
• Writing for the Court: McWHORTER
• Citation: State v. Banks, 55 S.E. 739, 61 W.Va. 6 (W. Va. 1906)
• Decision Date: 27 November 1906
• Parties: STATE . v. BANKS.

55 S.E. 739

61 W.Va. 6

STATE .

v.BANKS.

Supreme Court of Appeals of West Virginia.

Nov. 27, 1906.

Criminal Law—Bills op Exceptions— Sufficiency.

A case in which the bills of exceptions are insufficient; neither the evidence taken in the case nor the instructions in question being made a part of the record.

[Ed. Note.—For eases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2831, 2832.]

(Syllabus by the Court.)

Error to Circuit Court, Lincoln County. Levi Banks was convicted of unlawful shooting, and brings error. Affirmed.

Mareumi & Marcum, for plaintiff in error.

C. W. May, Atty. Gen., for the State.

McWHORTER, P. This is a prosecution against Levi Banks upon an indictment found in the circuit court of Logan county at the July term, 1903, for unlawfully, maliciously, and feloniously shooting one Jonah Ferguson. The case was tried at the November term of Logan court, 1903, when the jury returned a verdict of not guilty of malicious shooting and wounding, but guilty of unlawful shooting; and Banks was sentenced to the penitentiary for three years. The case was brought here on writ of error, and the judgment reversed, and the case remanded for a new trial. See 55 W. Va. 388, 47 S. E. 142.

At the May term, 1905, of the circuit court of Logan county, when the case was again called for trial, defendant moved for a continuance and presented his petition praying for a change of venue, and the court entered an order removing said cause to Lincoln county circuit court for trial. On motion of the prosecuting attorney of Lincoln county, the case was docketed on the 6th day of June, 1905, in the circuit court of Lincoln county; and on motion of the defendant the case was continued until the seventh day of the next regular term. On the 11th day of September, 1905, when the case was called, the defendant moved the court for a continuance until the next term, and filed his affidavit in support of his motion, and the cause was again continued, and at the December term, when the case was called, the defendant by his counsel, suggested a diminution of the record of the proceedings of the cause in the circuit court of Logan county, and suggesting that the record as certified by the clerk of the circuit court of Logan county was not complete, and that all orders, proceedings, and recognizances therein had not been copied and certified to the clerk of the Lincoln county circuit court as required by law, and moved the court for a ruling against the clerk of Logan circuit court requiring him to certify to the clerk of the circuit court of Lincoln county a complete record of the proceedings, which motion was overruled, and the defendant by counsel moved the court to strike the case from the trial docket for want of a complete record as stated, which motion was also overruled. The defendant then moved for a continuance on the ground of the absence of Loudon White, a material and necessary witness for the defendant, and introduced evidence to show his materiality, which motion for continuance was overruled. Under the direction of the court a jury was impaneled and sworn in the case, and after hearing the evidence returned a verdict against the said Banks of guilty of unlawful shooting and wounding as charged in the indictment. Defendant moved the court to set aside the verdict and grant a new trial, because the same was contrary to the law and the evidence, and because the jury had been improperly impaneled and sworn over the objection of the defendant, which motion was overruled, and judgment entered against the defendant, fixing his term of imprisonment at one year....