State v. Stalnaker, 10514

• Decision Date: 30 July 1953
• Docket Number: No. 10514,10514
• Citation: 138 W.Va. 30,76 S.E.2d 906
• Parties: STATE, v. STALNAKER.
• Court: West Virginia Supreme Court

Page 906

76 S.E.2d 906

138 W.Va. 30

STATE, v. STALNAKER.

No. 10514.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 27, 1953.

Decided Feb. 10, 1953.

Dissenting Opinion July 30, 1953.

Syllabus by the Court.

1. In a criminal prosecution, the weight of the evidence, the credibility of witnesses, and the drawing of reasonable inferences from the evidence are exclusively within the province of the jury.

2. A wound within the meaning of Code, 61-2-9, must include a complete parting or solution of the external or internal skin.

3. 'To support a finding of unlawful wounding under Section 9 of chapter 144 of the Code [Code, 61-2-9], there must be intent to produce a permanent disability or disfiguration.' State v. Taylor, 105 W.Va. 298, Point 3 Syllabus .

4. In a criminal prosecution, criminal intent or purpose is a question of fact for jury determination.

5. Under Code, 20-2-4, as amended by Section 4, Article 2, Chapter 5, Acts of the Legislature, Regular Session, 1933, a game protector has the right to carry a pistol or other firearms.

6. Where, in a prosecution for malicious wounding, evidence is adduced from which the jury could find beyond a reasonable doubt that the defendant, a game protector, in the performance of his official duties, intentionally and without justification shot an alleged violator of the game laws of this State, the verdict of the jury finding the defendant guilty of unlawful wounding will not be disturbed by this Court on writ of error on the ground that the evidence is insufficient to sustain the verdict of the jury.

7. Where, in a criminal prosecution, a defendant is charged with the crime of malicious wounding, and the jury finds him not guilty of malicious wounding, but guilty of unlawful wounding, it is prejudicial error for the trial court to give an instruction on malicious wounding which submits to the jury questions of law applicable to both offenses.

8. State v. Bowles, 109 W.Va. 174 , distinguished from the instant case.

Wysong & Wysong, Webster Springs, for plaintiff in error.

John G. Fox, Atty. Gen., and Thomas J. Gillooly, Asst. Atty. Gen., for defendant in error.

RILEY, Judge.

Wayne Stalnaker, a member of the law enforcement division of the Conservation Commission of West Virginia, was indicted in the Circuit Court of Gilmer County for the malicious and unlawful wounding of Okey L. Davis; and was found not guilty of the charge of malicious wounding, but was convicted of the unlawful wounding charged in the indictment and sentenced to ten months' confinement in the Gilmer County jail and fined one hundred dollars.

The defendant, Wayne Stalnaker, one of the law enforcement officers of the conservation commission, was assigned to the Counties of Barbour, Randolph, Upshur, Tucker, Lewis, Harrison, Tyler, Gilmer and Doddridge. He had had the position of chief law enforcement officer for the conservation commission for fifteen years.

Clay Miller, the conservation officer for Gilmer County, whose duties consisted of the protection of game, fish, wild life and the forests, received a report of numerous game violations in the vicinity of the prosecuting witness' farm in Gilmer County. Miller sought assistance from R. V. Thompson, the conservation officer for Lewis County, and went to Weston, where he conferred with the latter. Miller having reported to his superior, Stalnaker, the conditions in Gilmer County, the defendant ordered Thompson to accompany him to that county for the purpose of rendering whatever official assistance was required by Miller in the enforcement of the conservation laws in that county. Pursuant to arrangement, the three officers, Stalnaker, Miller and Thompson, about four-thirty in the afternoon of September 23, 1951, proceeded by automobile to a point on Leading Creek in Gilmer County, near the farm and residence of the prosecuting witness, Okey L. Davis, at which place the automobile was parked. The officers, having heard a shot in a general direction downstream of the creek near which they were standing, proceeded in that direction for the purpose of investigating the source thereof. A short time later, and in the same direction, they heard three more shots on the Davis farm, making in all four shots. Defendant and Thompson then went toward and on defendant's farm to investigate 'the source of these shots', and conservation officer Miller remained behind. Stalnaker and Thompson went on the land below an orchard, and Stalnaker, walking ahead, while Thompson tarried at an undisclosed point for fifteen or thirty minutes, came to the edge of the woods above the orchard, where he heard a noise in the woods. Looking up he saw Davis, who, defendant testified, was carrying a gun, either a rifle or shotgun. At that time Stalnaker, wearing his regulation uniform and armed with a thirty-eight caliber pistol, 'cut back' below a wire fence. Defendant then heard Davis, or the same person he had seen before, say, 'Where did them damned game wardens go?' Davis, having proceeded under the wire fence, the two persons approached each other. Defendant testified that Davis, addressing him in vile language, told him to 'get off of here before I kill you'; that Davis then attacked defendant with 'some kind of an instrument', which he identified as a hammer, and which was produced in evidence at the trial. Defendant further testified: 'And he made at me with some kind of an instrument which proved later to be a hammer, which I have here. We had quite a round there, and he knocked my glasses off and broke them. He hit me a couple of licks over the head with this hammer, Mr. Wysong, so then we got down in somewhat of a scrimmage and we got down on the ground. During the scuffle these straps--I don't know if the people are familiar with them--we call 'lanyards', these straps that go around the shoulder to hold the pistol. Mr. Davis had hold of that lanyard on the ground and he jerked the pistol out of the holster, and I grabbed the pistol, and when I grabbed the pistol to put it up why he kicked my arm, which caused the pistol to be discharged, and the dirt flew up just a short distance from where we were laying.'

According to Stalnaker at the time the pistol was fired, and while he was lying upon Davis, he had the latter's right leg pinned to the ground in such way that it was covered by defendant's body.

In the main Stalnaker's testimony is corroborated by that of conservation officer R. V. Thompson, who, together with defendant and the prosecuting witness Davis, were the only eyewitnesses to the entire altercation. Thompson testified that after entering Davis' land, defendant and he walked in a field back of Davis' house, and, having reached the top of the hill back of the house, he stopped and sat down for fifteen or thirty minutes, while defendant went around the hill, disappearing from view. After a while defendant came back around the hill toward witness, and at defendant's direction Thompson proceeded to the left into the woods, and Stalnaker went in the opposite direction. After travelling through the woods for some distance, 'two or 300 yards probably', Thompson heard two people yelling back and forth to each other, evidently some distance apart. Thereupon, Thompson started to run back toward the field, coming into the orchard on the other side of the hill, where he heard voices fairly close to him and someone say, 'Get out of here you _____, I will kill you.' Turning in the direction of the voices, he saw defendant stagger out backwards from behind some brush and, running over to the wire fence, observed defendant running toward the prosecuting witness, swinging his hands at him. Thompson climbed through the fence, and by that time defendant and Davis had clinched. Just as he got over the fence, Thompson saw Davis and Stalnaker on the ground, about thirty feet away. As he proceeded toward the two men, Thompson saw Stalnaker's pistol fall to the ground and defendant retrieve it. This witness further testified: 'Mr. Davis and hold of the lanyard, the strap that fastened to the part of the gun, and they thrashed around there for just--on the ground Mr. Davis' foot hit Stalnaker on the arm and the gun went off. That bullet struck the ground in front of me there about 5 feet from the muzzle of the gun'; and at the time the gun was fired Davis' right leg was under Stalnaker's body.

That prior to being forced to the ground by Stalnaker's onslaught, the prosecuting witness struck defendant over the head with a small hammer, which he was carrying, as he came down the hill in the direction of the two officers, is established beyond peradventure by this record. The uniform, which Stalnaker wore at the time of the encounter between the two men, was introduced in evidence, and furnishes mute evidence from the bloodstains thereon that wounds on defendant's head caused him to bleed profusely, blood running down over his face on the front of his uniform, and also running down his neck and back from the top of his head on the back of his uniform.

On the other hand Davis in his testimony for the State, which in a number of details is at variance with defendant's and Thompson's testimony, testified that he went into the woods above his residence with a small hammer and some roofing tacks, carrying them in a gas mask for the purpose of posting his lands; that when he came to the end of an orchard below and continguous to the woods and climbed over a fence separating the woods from his pasture fields, he saw Stalnaker on his left, coming around a bunch of cherry trees, which stood on a corner of the meadow by a gap which enters the orchard, wearing his regulation uniform as a conservation officer, and carrying a revolver in his right hand; that when witness saw Stalnaker with his gun, he called defendant a degrading and insulting name, saying, 'you got nothing on me this time. This farm is posted from one end to the other'; that witness then walked...