State v. Lane

• Citation: 44 W.Va. 730,29 S.E. 1020
• Court: West Virginia Supreme Court
• Decision Date: 09 April 1898
• Parties: STATE . v. LANE.

29 S.E. 1020

44 W.Va. 730

STATE .

v.LANE.

Supreme Court of Appeals of West Virginia.

April 9, 1898.

Criminal Law—Appeal—Continuance—Newly-Discovered Evidence.

1. A criminal case will not be reversed unless the record shows error committed, prejudicial to the prisoner.

2. The refusal of a continuance, unless plainly erroneous, will not justify the reversal of a judgment.

3. Newly-discovered evidence, apparently insufficient to change the result, will not justify a new trial.

4. Where the verdict of the jury is fully sustained by the circumstances shown by all the evidence in the case, other than that of the prisoner, it will not be disturbed.

(Syllabus by the Court.)

Error to circuit court, Mingo county; E. S. Doolittle, Judge.

Lando Lane was convicted of manslaughter, and brings error. Affirmed.

H. K. Shumate, for plaintiff in error.

E. P. Rucker, Atty. Gen., for the State.

DENT, J. Lando Lane, indicted for killing William Vance, in the circuit court of Mingo county, was found guilty of murder in the second degree, and sentenced to 10 years' imprisonment. He here relies on the following assignment of errors: "First. The court erred in overruling your petitioner's motion for a continuance. Second. The court erred in not furnishing compulsory process for his witnesses. Your petitioner showed, in support of said motion, that he had made an effort to procure counsel, and believed that he had, until the day preceding the calling of his case for trial; that then he learned that the attorneys he believed he had employed would not appear for him; that he then had to procure other counsel, which he did, but who was, from the short space of time allotted him, unable to prepare for said trial; that his counsel had demanded attachments for certain witnesses that were material, which had been ordered by the court, and directed to be issued and served, but the clerk of said court did not issue said attachments, or, if issued, no officer of the court would execute, and the fact that such failure of the clerk and sheriff had occurred was not known to the prisoner or his counsel until his case was called for trial, and then the court refused to furnish said compulsory process, or postpone his trial until such witnesses could be procured. The materiality of such witnesses are shown by affidavit subsequently filed, and made part of the record, upon your petitioner's motion to set aside the verdict and grant him a new trial. Third. The court erred in overruling motion for continuance upon the ground that the prosecuting attorney had discharged a witness summoned for the state, which he knew was material for the defense, and sending him away from the court house surreptitiously, without the knowledge or consent of the court, the prisoner, or his attorney. Fourth. The court erred in permitting the state to prove the character of the prisoner, when it had not been put in issue by the defense. Fifth. The court erred in permitting other improper evidence to go before the jury, as will appear from bill of exceptions No. 2. Sixth. The court erred in passing sentence upon petitioner, there being no judgment of guilty pronounced on the verdict of the jury. Seventh. The court erred in passing sentence upon petitioner without...