State v. Flaherty

• Decision Date: 17 June 1896
• Citation: 42 W.Va. 240,24 S.E. 885
• Court: West Virginia Supreme Court
• Parties: STATE. v. FLAHERTY.

24 S.E. 885

42 W.Va. 240

STATE.

v.FLAHERTY.

Supreme Court of Appeals of West Virginia.

June 17, 1896.

Crlminal Law—Change of Venue — Prejudice.

The fact that a jury free from exception can be impaneled is not conclusive, on a motion for change of venue, that prejudice does not exist, endangering a fair trial, and will not justify the court in refusing to receive other evidence to support such motion.

(Syllabus by the Court.)

Error to circuit court, Cabell county. David Flaherty was convicted of conspiracy, and appeals. Reversed.

McCallister & Blackwood, E. H. Fitch, Lace Marcum, and J. R. Wilson, for plaintiff in error.

T. S. Riley, Atty. Gen., for the State.

BRANNON, J. J. M. Bingham, Edmund Fry, and David Flaherty were jointly indicted, under the Red Men's act, for conspiracy and violence to R. B. Yowell, as stated in Bingham's Case (decided this day) 24 S. E. 883; and Flaherty was tried separately, convicted, and sentenced to the penitentiary four years, and has appealed to this court We will not consider certain evidence allowed, and other evidence refused, for reasons stated in Bingham's Case, this day decided What is there said as to instructions Nos. 1, 2, and 3 in that case will apply to Nos. 1, 2, and 3 in this case. We do not regard them bad.

This instruction for the state is complained of: Instruction No. 4. "If the jury believe from the evidence in the case that David Flaherty, Fry, and Bingham, or that David Flaherty and either Fry or Bingham, assaulted and injured R. B. Yowell, in said county, in pursuance of a combination, conspiracy, or understanding entered into by them either before they reached the place where said assault was committed, or after they reached there, to do said Yowell bodily harm or injury, then it is immaterial and makes no difference who struck the first blow, or who brought on said assault and conflict." A similar instruction in Bingham's Case was held bad, because he gave evidence tending to show that Yowell struck him first, justifying what he (Bingham) did in the way of violence to Yowell; but there is no evidence that Yowell assaulted Flaherty, so as to justify any violence by Flaherty, if he used any. If Flaherty engaged in a conspiracy, and in pursuance of it inflicted injuryupon Yowell, I do not see how Yowell's first assault (if any) upon Bingham would justify violence on Flaherty's part, or become material in Flaherty's trial, and hence I see no error in that instruction in this case.

But we find error in the...