State v. Newman.
| Decision Date | 07 September 1901 |
| Parties | State v. Newman. |
| Court | West Virginia Supreme Court |
A question of self-defense is peculiarly a jury question, and an appellate court will not set aside a verdict against that defense except in rare cases, where it is very manifestly and plainly against the evidence, (p. 725).
Where a verdict finds a defendant guilty of a crime, a recommendation in that verdict by the jury to the mercy of the court has no legal effect, is mere surplusage, and cannot he considered in an appellate court to set aside the judgment of the trial court infixing punishment, (p. 725)..
Where one person has been elected special judge to hold a court during the absence of the regular judge, and a second special judge is elected, though the record does not state the absence of the first special judge or other cause of his election, but only states that the regular judge is absent, it will be presumed that there was cause for the election of the second special judge from the absence of the first special judge, or other cause, unless it otherwise appears from the record, and the action of the second judge will be valid, (p. 726).
There may be more than one special judge elected during the same term to hold a court in the absence of the regular judge, if from the absence of the first elected judge there be reason for the election of a second special judge, (p. 727).
If it may be inferred from the record that a person is present in person at a trial, it is sufficient, though the record do not affirmatively say that he was present in his proper person, (p. 727).
Error to Circuit Court, Kanawha County. William Newman was convicted of unlawful shooting, and brings error.
J. W. Kennedy and F. L. Beardsley, for plaintiff in error. B. II. Freer, Atty. Gen., and Alex Dulin, for the State.
Affirmed.
Brannon, President:
William. Newman was convicted in the criminal court of Kanawha County of the unlawful shooting of Jack Shea, and was sentenced to the penitentiary for three years. He applied to the circuit court of Kanawha County for a writ of error, but it was refused, and then he brought this writ of error in this Court.
The first point which his assignments of errors makes against the judgment is that the court refused to give him a new trial on the ground that the verdict was contrary to the evidence. I shall only say, because it is only necessary to say, that as the question before the jury was whether the shooting was excusable, as in self-defense, was peculiarly a jury question of fact, and I need not cite authority to say that we cannot reverse the jury and the criminal court for error herein. The shooting not being questioned, and the sole question being one of self-defense or not, it must be a very plain case of erroneous verdict to justify this Court in overruling a verdict approved by the trial judge, as has been held a thousand times. We cannot thus invade the province of a jury. In the Federal courts, and most of the State courts, no error can be based on the refusal of a new trial, where the question is purely one of evidence, and while such is not the law in this State, still it is an admonition to us of the sanctity and legal effect of a verdict of a jury, and of the danger of our interference with a verdict except upon the plainest grounds of error. State v. Hunter, 37 W. Va. 744; State v. Bowyer, 43 Id. 180; Lawrence's Case, 30 drat. 845.
The second point made against the judgment is, that the verdict was for unlawful shooting only with a clause added in the words "and (the jury) asks the mercy of the court," and that this indicated a finding for a misdemeanor only, and the court erred in sending Newman to the penitentiary. Plainly there is nothing in this point. The verdict distinctly found Newman guilty of unlawful wounding, as charged in the indictment, and the recommendation was simply surplusage, which the court was at liberty to disregard, because the court is given by law the sole power and discretion to fix the punishment, and to say whether, in such a case as this, the party shall be punished by confinement in the penitentiary or jail. Code, chapter 144, section 9; chapter 152, section 21. A jury cannot infringe upon the prerogative of the court in such matter. The law demands of the judge that he shall pass his judgments as to the mode and extent of the judgment. Nor can it be said that the punishment is excessive, because if it is within the limit of the law, it cannot be so regarded.
A third point made against the judgment is that J. II. Couch tried the accused as special judge, and that the record shows that on one day of the court George W. McClintic was elected a special judge, on the 5th clay of January, and that on the 9th day of January, Edwin M. Keatley was elected special judge, and that on the 6th day of February James H. Couch was elected special judge, and that the record shows no reason for the election of Couch, futher than its statement that "the judge of this court not being able to attend the court this day, the clerk of this court at the instance of the attorneys present and practicing in this court, proceeded to hold an election of a judge to hold said court during the absence of said criminal judge." The contention is that McClintic, under his election on the 5th day of January filled the office of judge, and the record must show his resignation, death or failure to be present in order to warrant the election of another judge. Here it is only necessary to say that it has been held that where a special judge has tried a case and no objection was made on the trial to his authority, and the record is silent as to the mode of his appointment or election, no objection to his authority can be raised in the appellate court for the first time, provided that by law he could have been elected, as the appellate court will presume that he was legally elected. State v. Lowe, 21 W. Va. 782; Jarrell v. French, 43 Id. 457; Winans v. Winans, 22 Id. 678. Such is the general law laid down, under many authorities, in 11 Ency. PL & Prac. 793. No objection was made to the judge in the trial court. Therefore, though the record docs not show the resignation or other...
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