State v. Bert

• Decision Date: 07 March 1933
• Docket Number: No. 7077.,7077.
• Citation: 169 S.E. 410
• Court: West Virginia Supreme Court
• Parties: STATE. v. SI BERT.

169 S.E. 410

STATE.

v.SI BERT.

No. 7077.

Supreme Court of Appeals of West Virginia.

March 7, 1933.

Rehearing Denied June 2, 1933.

Syllabus by the Court.

1. 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. Where one instruction has been given, fully covering a principle of law. applicable tothe case, It is not error to refuse another instruction to the same effect, although differently expressed.

3. 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, of Charleston, for plaintiff in error.

H. B. Lee, Atty. Gen., and W. Elliott Nefflen, Asst. Atty. Gen., for the State.

WOODS, Judge.

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 20 feet wide. Defendant and a young lady were returning to Charleston, in a Buick 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 coupfi 2 feet over the center line and struck their car, 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 midways.

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 130 feet distant. The chief of police nnd a justice of the peace from St. Albans arrived at the scene of the accident around 3 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 18 to 24 inches in length where the touring car had slid before it commenced turning; and that such marks were 18 to 24 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, 8 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 car 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 car, 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 coup6 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. E. 607.

It appears 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 theplaintiff had...