State v. Siers
| Decision Date | 18 January 1927 |
| Docket Number | (No. 5379.) |
| Citation | 136 S.E. 503 |
| Parties | STATE . v. SIERS. |
| Court | West Virginia Supreme Court |
(Syllabus by the Court.)
Error to Circuit Court, Harrison County.
John S. Siers was convicted of assault, and he brings error. Judgment reversed, verdict set aside, and a new trial awarded.
A. F. McCue, of Fairmont, Powell & Clifford and Sperry & Sperry, all of Clarksburg, and Glenn F. Williams, of Ft. Pierce, Fla., for plaintiff in error.
Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.
HATCHER, P. John S. Siers was found guilty in the criminal court of Harrison county of an assault on Harry Lyons. The judgment of the court is attacked on the following theories:
(1) The trial court erred in refusing to grant a change of venue upon the uncontradicted statements contained in the petition therefor and its 12 exhibits.
(2) The court erred in refusing to exclude four members of the jury in this case because of their interest in the case.
(3) The court erred in refusing to give instruction No. 3, offered by the defendant, submitting to the jury the defense of self-defense.
1. The petition for a change of venue alleges that there is a large and influential organization in Harrison county, known as the Knights of the Ku Klux Klan, numbering about 4, 500 members; that this organization contains an auxiliary affiliation, known as the Ladies of the Knights of the Ku Klux Klan, numbering more than 1, 000 members; that for a considerable time enmity has existed between the petitioner and the Klan; that the Klan had made many threats against the person of the petitioner; that through its officers and agents the Klan had expressed its intention to prosecute petitioner for various offenses alleged to have been committed by him; that the Klan had caused eight different warrants to be sworn out against petitioner; that the Klan publishes a newspaper, the Fiery Cross, in numerous editions of which a large part of the front page had been taken up by inflammatory headlines against petitioner; that the articles against him appearing in that paper were of a highly slanderous nature, and totally misrepresented and distorted the facts in connection with the alleged assault on Lyons; that the Fiery Cross is sold at most of the news stands in Clarksburg and other towns in Harrison county, and is also vended on its publication day on the streets of Clarksburg, Shinnston, Wallace, Salem, Wolfe Summit, Bridgeport, and other, towns in Harrison county; that through such sales, and the activities of the Klan members, the Fiery Cross has a wide and general circulation in Harrison county; that by reason of the articles in the said paper, the wide circulation thereof, together with press reports regarding the alleged assault in other newspapers, and the discussion of the same by members of the Klan, there are scarcely any persons in Harrison county who have not read and discussed the facts regarding the assault; and that a hostile sentiment has been createdthereby and exists against petitioner throughout the county.
The accused filed six affidavits of reputable citizens of the county, which fully support the charge in his petition that there existed at the time of the trial a general and widespread hostile sentiment against him in Harrison county, which had been created and fomented by the Klan. The state did not controvert the charges of the petition. It is settled law in this state that, upon a petition of the accused, good cause being shown, he may have a change of venue to some other county. The burden of showing to the satisfaction of the court good cause for removing the case rests on the petitioner. Such good cause must exist at the time the application is made. State v. Greer, 22 W. Va. 800; State v. Powers, 91 W. Va. 737, 113 S. E. 912. The petition and the affidavits state as a fact that a hostile sentiment against the accused existed throughout the entire county at the time of the trial. If this be true, and without any controversion we must...
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State v. Zaccagnini
...another c ounty.' Point 2, syllabus, State v. Dandy, 151 W.Va. 547, 153 S.E.2d 507 (196 7), quoting point 1, syllabus, State v. Siers, 103 W.Va. 30, 136 S.E. 503 (1927)." Syllabus Point 2, State v. Sette, 161 W.Va. 384, 242 S.E.2d 464 3. "A common law privilege is accorded the government ag......
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