State v. Daniel Wolfe, (No. 5430)

CourtSupreme Court of West Virginia
Writing for the CourtWOODS, J.
Citation99 W.Va. 694
PartiesState v. Daniel Wolfe
Docket Number(No. 5430)
Decision Date29 September 1925

99 W.Va. 694

State
v.
Daniel Wolfe

(No. 5430)

Supreme Court of Appeals of West Virginia.

Submitted September 22, 1925.
Decided September 29, 1925.


[99 W.Va. 694]

1. Criminal Law Witnesses Extent to Which Prosecuting Witness May be Cross-E xamined to Show Fixed Bias Towards Accused is Left Largely to Sound Discretion of Trial Court; Trial Court's Action in Excluding or Permitting Questions on Cross-Examination is Not Reviewable Except

in Cases of Manifest Abuse or Injustice.

On trial of a person charged with crime, the extent to which a prosecuting witness may be cross-examined to show a fixed bias toward the defendant is left largely to the sound discretion of the trial court. In the exercise of this discretion in excluding or permitting questions on cross-examination, its action is not reviewable on appeal, except in cases of manifest abuse or injustice, (p. 700).

(Criminal Law, 17 C. J. § 3584; "Witnesses, 40 Cyc. pp. 2512, 2513, 2659).

2. Same Remarks of Counsel Will Justify New Trial Only When Wholly Unwarranted by Evidence and Prejudicial.

It is only where the remarks of counsel are wholly unwarranted by the evidence and prejudicial to the party affected, that they will justify a new trial, (p. 700).

(Criminal Law, 16 C. J. §§ 2240, 2641).

3. Same Homicide Province of Jury to Weigh Evidence on Self Defense; Jury's Verdict, Adverse to Accused, Will Not Be Set Aside Unless Manifestly Against Weight of Evidence.

It is peculiarly within the province of the jury to weigh the evidence upon the question of self defense, and the verdict of a jury adverse to that defense will not be set aside unless it is manifestly against the weight of the evidence, (p. 701).

(Criminal Law, 16 C. J. § 2290; 17 C. J. § 3593: Homicide, 30 C. J. § 580).

4. Homicide Evidence Held to Sustain Verdict of Murder in Second Degree.

A case where the evidence sustains a verdict of murder in the second degree, (p. 696). (Homicide, 30 C. J. § 560).

Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.

[99 W.Va. 695]

Error to Circuit Court, Harrison County. Daniel Wolfe was convicted of second degree murder, and he brings error.

Judgment affirmed.

Robinson & Robinson and John S. Stump, Jr., for plaintiffs in error.

Howard B. Lee, Attorney General, and R. A. Blessing, Assistant Attorney General, for the State.

Woods, Judge:

From a judgment of fifteen years' imprisonment in the penitentiary, upon a verdict of a jury for second degree murder, Daniel Wolfe appeals to this Court.

To get a proper perspective of the case, the following facts preliminary to the summarization of the testimony are pertinent: The defendant, age 37 years, is a glass worker by trade, and has a wife and four children. Becoming estranged from his wife, some seven months prior to the time of the homicide, he left his family at their home in Clarksburg, he having ever since that time been employed at his trade in Ohio and Pennsylvania. On the trial it developed that the husband attributed this estrangement to attentions given to his wife by his brother, Albert Wolfe. The said brother, however, disclaimed any motive in such attentions other than a natural friendly interest in the neglected wife and children of a brother. Aside from the diametrically opposed statements of the two brothers, as to the reason for such estrangement, the record is silent.

The evidence disclosed by the witnesses for the State is to the effect that on the night of July 12, 1924, the defendant came to the house where his family had been living since he left them several months before, in the Northview Section of the City of Clarksburg. When the defendant approached the rear of the house, his wife, three children and his brother Albert, were in the kitchen. According to the testimony of

[99 W.Va. 696]

Albert Wolfe, as the defendant approached the kitchen the defendant's wife said, "There is Dan," and grabbed the children and rushed to the bath room; that the defendant came thru the door with a pistol in his hand and said, '' I have come back to get you, I am going to kill you," directing his remarks to the witness; that defendant told witness to go into the dining room, which he did, and defendant searched him to see if he had any weapons on him; that defendant then went on to the bathroom door and tried to get in, but the door was locked and that defendant's wife and children were screaming; that when defendant could not get in the bathroom he came back to where witness was and witness tried to reason with him and told him to put the pistol away and be reasonable and fix things up without trouble, and defendant said, "I came for trouble and I expect to have it"; that shortly after defendant came from the bathroom door witness heard one of the little girls, Esther, leave the rear of the house along the board walk, and in a minute or two later he heard screams over about Claude Wilson's place, and shortly thereafter witness heard Wilson coming towards the house, and witness told defendant to put away his gun or he would get in trouble and defendant got up from where he was sitting and passed out through the dining room and out the rear door; that witness made for the front door and while he was unlocking it he heard a shot fired in the rear, and some one scream, "I am shot"; that witness went out of the house to a nearby store; that he saw Mr. Wilson crossing the vacant lot, and later assisted him into a hospital ambulance; and that witness did not see defendant again until he was arrested by the officers at the home of another brother in a distant section of the city.

Esther Wolfe, age twelve years, a daughter of the defendant, was at home the night of the shooting and at her mother's request went to the home of Claude Wilson for assistance. She testified that when the defendant came to the house her mother said, "My Cod,...

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10 practice notes
  • State v. Davis, No. 16433
    • United States
    • Supreme Court of West Virginia
    • March 25, 1986
    ...158 W.Va. 741, 214 S.E.2d 832 (1975); Syl. pt. 1, State v. Charlot, 157 W.Va. 994, 206 S.E.2d 908 (1974); Syl. pt. 1, State v. Wolfe, 99 W.Va. 694, 129 S.E. 748 16 See also State v. Burton, supra note 14; State v. Justice, 135 W.Va. 852, 863, 65 S.E.2d 743, 749 (1951); Syl. pt. 3, State v. ......
  • State v. Bragg, No. 10701
    • United States
    • Supreme Court of West Virginia
    • June 7, 1955
    ...and prejudicial that a conviction will be set aside on account thereof. State v. Scurlock, 99 W.Va. 629, 130 S.E. 263; State v. Wolfe, 99 W.Va. 694, 129 S.E. 748.' Conceding that the foregoing remark was improper, its utterance does not warrant the reversal of the judgment; and nowhere in t......
  • Long v. City of Weirton, No. 13155
    • United States
    • Supreme Court of West Virginia
    • April 29, 1975
    ...case of manifest abuse or injustice.' Syllabus point 4., State v. Carduff, 142 W.Va. 18, 93 S.E.2d 502 (1956). See also, State v. Wolfe, 99 W.Va. 694, 129 S.E. 748 Perceiving no manifest injustice or abuse of discretion by the trial court in this regard, we find no merit in appellant's prop......
  • State v. Carduff, No. 10766
    • United States
    • Supreme Court of West Virginia
    • June 26, 1956
    ...not reviewable except in case of manifest abuse or injustice. Nees v. Julian Goldman Stores, 109 W.Va. 329, 154 S.E. 769; State v. Wolfe, 99 W.Va. 694, 129 S.E. 748; State v. Porter, 98 W.Va. 390, 127 S.E. 386; State v. Prater, 52 W.Va. 132, 43 S.E. 230. The testimony elicited by the questi......
  • Request a trial to view additional results
10 cases
  • State v. Davis, No. 16433
    • United States
    • Supreme Court of West Virginia
    • March 25, 1986
    ...158 W.Va. 741, 214 S.E.2d 832 (1975); Syl. pt. 1, State v. Charlot, 157 W.Va. 994, 206 S.E.2d 908 (1974); Syl. pt. 1, State v. Wolfe, 99 W.Va. 694, 129 S.E. 748 16 See also State v. Burton, supra note 14; State v. Justice, 135 W.Va. 852, 863, 65 S.E.2d 743, 749 (1951); Syl. pt. 3, State v. ......
  • State v. Bragg, No. 10701
    • United States
    • Supreme Court of West Virginia
    • June 7, 1955
    ...and prejudicial that a conviction will be set aside on account thereof. State v. Scurlock, 99 W.Va. 629, 130 S.E. 263; State v. Wolfe, 99 W.Va. 694, 129 S.E. 748.' Conceding that the foregoing remark was improper, its utterance does not warrant the reversal of the judgment; and nowhere in t......
  • Long v. City of Weirton, No. 13155
    • United States
    • Supreme Court of West Virginia
    • April 29, 1975
    ...case of manifest abuse or injustice.' Syllabus point 4., State v. Carduff, 142 W.Va. 18, 93 S.E.2d 502 (1956). See also, State v. Wolfe, 99 W.Va. 694, 129 S.E. 748 Perceiving no manifest injustice or abuse of discretion by the trial court in this regard, we find no merit in appellant's prop......
  • State v. Carduff, No. 10766
    • United States
    • Supreme Court of West Virginia
    • June 26, 1956
    ...not reviewable except in case of manifest abuse or injustice. Nees v. Julian Goldman Stores, 109 W.Va. 329, 154 S.E. 769; State v. Wolfe, 99 W.Va. 694, 129 S.E. 748; State v. Porter, 98 W.Va. 390, 127 S.E. 386; State v. Prater, 52 W.Va. 132, 43 S.E. 230. The testimony elicited by the questi......
  • Request a trial to view additional results

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