State v. Poe

• Decision Date: 25 April 1911
• Citation: 71 S.E. 177,69 W.Va. 260
• Parties: STATE v. POE.
• Court: West Virginia Supreme Court

71 S.E. 177

69 W.Va. 260

STATE v. POE.

Supreme Court of Appeals of West Virginia.

April 25, 1911

Submitted March 14, 1911.

Syllabus by the Court.

Evidence that a person made a statement that he, and not the accused committed the crime, would not be admissible on a trial of the accused, and therefore is not ground for a new trial.

(Additional Syllabus by Editorial Staff.)

On motion for a new trial for newly discovered evidence, the affidavit of the new witness showing to what he will testify must be produced, or good excuse shown for its absence.

Error to Circuit Court, Taylor County.

Burt Poe was convicted of stabbing another, and he brings error. Affirmed.

Sommerville & Sommerville, for plaintiff in error.

Wm. G Conley, Atty. Gen., and G. W. Ford, Pros. Atty., for the State.

BRANNON J.

Burt Poe was indicted for stabbing William A. Rogers and was convicted by a jury, and was sentenced to the penitentiary for two years.

Poe made a motion for a new trial on the ground that the verdict was contrary to the evidence; but he does not rely upon that in this court. There is a large volume of conflicting evidence, and it is useless to say anything more as to this.

The only point relied upon here is the refusal of the court to grant a new trial on newly discovered evidence. This motion was based on two affidavits. Poe's affidavit says that he has learned from a good, reliable, and creditable source that Joseph Shackelford will testify upon retrial that he was present during the difficulty between W. A. Rogers and Poe and saw Luther Rogers cut and stab W. A. Rogers. Poe does not name the good, reliable, and creditable source of such information, unless it be Benjamin F. Bailey. Poe's affidavit says that he had tried to get an eyewitness to the trouble, and that his first information that an eyewitness to the crime could be produced was given him by Benjamin F. Bailey, his attorney. Is Bailey the person who gave him this information? If he is not, then the affidavit is fatally defective in not naming the person who gave him information that Shackelford would so testify. It is a prime necessity that the person should be named, and should have talked with the proposed witness.

Is a court to turn down a verdict upon the mere statement of a prisoner that he has received information that a witness would say so and so, when he does not state who so informed him? He does not state that he ever talked with Shackelford and he does not give the name of the person who informed him that Shackelford would give such evidence. Where is Shackelford? He must be in that country, because Poe's affidavit says on another trial he can prove certain things by Shackelford. Why is Shackelford's affidavit not produced? Our case of Jacobs v. Williams, 67 W.Va. 377, 67 S.E. 1113, demands that the affidavit of the new witness showing what he will testify must be produced, or good excuse shown for its absence. So State v. Stowers, 66 W.Va. 198, 66 S.E. 323. He must produce the affidavit of the witnesses, or, if that be impracticable, the affidavit of some one who has conversed with them showing what facts they would state. Brown v. Speyers, 20 Grat. (Va.) 296; Nuckols v. Jones, 8 Grat. (Va.) 267. Poe does not say he talked with Shackelford, nor does any one else. Benjamin F. Bailey made an affidavit stating that he was standing in front of the post office, "and a thoroughly reliable citizen, who is acquainted with all the parties concerned in the above prosecution, approached affiant, and inquired about the status of the above case. Affiant fully advised him of the exact status, and he proceeded to advise affiant in regard to evidence that can be secured that affiant never heard of before the trial. And affiant further says that the substance of information given him is as follows: That Joseph Shackelford will testify that he saw Luther Rogers cut and stab W. A. Rogers; that affiant's informant advised him that Ford went home with said Rogers, and fully advised him that Luther Rogers was the party who committed the crime--cut and stabbed him." Who is that thoroughly reliable citizen? The affidavit does not tell us. But the law says that...