State v. Hunter, (No. 5778.)
| Court | Supreme Court of West Virginia |
| Citation | 137 S.E. 534 |
| Decision Date | 15 March 1927 |
| Docket Number | (No. 5778.) |
| Parties | STATE. v. HUNTER. |
137 S.E. 534
STATE.
v.
HUNTER.
(No. 5778.)
Supreme Court of Appeals of West Virginia.
March 15, 1927.
Error to Circuit Court, Greenbrier County.
Jennings Hunter was convicted of the larceny of hogs, and he brings error. Judgment reversed, verdict set aside, and a new trial awarded.
Jarrett & Driscoll, of Lewisburg, for plaintiff in error.
Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.
MILLER, J. Defendant was convicted of the larceny of a sow valued at $25 and two shoats of the value of $15. The error assigned is the refusal of the trial court to instruct the jury that the defendant was not guilty of grand larceny, because the state failed to prove that the sow known to have been in his possession was the one lost by or taken from the prosecuting witness L. J. Le Masters, and the court's refusal to set aside the verdict of the jury on defendant's motion based on the same ground of lack of proof of a felony.
The state's evidence is that in the fall of the year Le Masters turned out on the mast or acorns near his home a black sow and her two pigs. He had purchased the sow from Kenneth McMillion about three years before; and at that time she was marked by a crop off of each ear. Le Masters' mark was a crop off the right ear and an underbit or underkeel in the same ear. After purchasing the sow Le Masters put an underkeel in her right ear, and before turning the three hogs out on the mast he marked the two pigs by cropping and marking with an underkeel the right ear of each. The three hogs were afterwards seen in the vicinity of MIcMillion's home, some two miles from where Le Masters lived. Le Masters says that when he failed to find the hogs, upon learning that defendant had been seen driving a sow and two shoats from near McMillion's place and over the mountain to his home, he went to defendant's place, which was some ten miles distant, but that the latter denied having driven any hogs over the mountain from near the McMillion place; that after spending the night in the vicinity, he returned to defendant's home, and was shown two shoats in a pen, one of which looked like his pig; but that he could not have sworn they were his pigs because their ears had recently been "cut half or more, " and the pigs were still covered with blood. He made two or three later trips to look at the pigs and finally decided they were his. It does not appear whether the ears of these pigs were cut down far enough to...
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...guilt is proven to the actual exclusion of every reasonable hypothesis of innocence.' Point 2, Syllabus, State v. Hunter, 103 W.Va. 377 [137 S.E. 534]. 4. In the trial of a criminal case, where the State has established facts prima facie warranting the admission of a written alleged confess......
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...v. Ison, 104 W.Va. 217, 139 S.E. 704 (1927); State v. Whitehead, 104 W.Va. 545, 140 S.E. 531 (1927); and State v. Hunter, 103 W.Va. 377, 137 S.E. 534 (1927). 3 In State v. Stone, W.Va., 268 S.E.2d 50, 55 (1980), we condemned an instruction on inferences to be drawn from the possession of re......
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