State v. Stowers
| Citation | 66 S.E. 323,66 W.Va. 198 |
| Parties | STATE v. STOWERS. |
| Decision Date | 09 November 1909 |
| Court | Supreme Court of West Virginia |
Submitted June 4, 1909.
Syllabus by the Court.
Newly discovered evidence as a ground for new trial must not be merely corroborative, but material and such as will call for a different verdict.
Upon a motion for a new trial on new oral evidence, the affidavit must state the evidence, and by what person it can be proven and the affidavit of such person that he will give such evidence, stating it, must be produced, or good excuse given for its absence.
Upon a motion for a new trial for new evidence, it is not enough for a prisoner to say that he did not know before the trial that he could prove such matters; but he must show the exercise of diligence in some proper way fitting the case to ascertain such matters.
The general rule is that a new trial will not be granted a prisoner where the verdict against him involves conflicting oral testimony and credit of witnesses.
Error to Circuit Court, Lincoln County.
Henry Stowers was convicted of maliciously shooting another, and he brings error. Affirmed.
Wilkinson & Hager and B. H. Oxley, for plaintiff in error.
Wm. G Conley, Atty. Gen., for the State.
Henry Stowers was sentenced to the penitentiary for five years for the malicious shooting of a woman named Josie Whitten in Lincoln county. He complains of certain instructions given for the state and refusal of instructions asked by him. We have carefully gone over these instructions, and find no error in respect to them. It cannot be necessary to cumber the reports by inserting and considering these 16 instructions, as they do not involve any legal principles not old and settled.
Another complaint, one scarcely deserving mention. It is that the prosecuting attorney in addressing the jury said that "if the jury find in favor of the state according to instruction No. 1 given the jury at the instance of the state, such finding would eliminate from their consideration all other instructions." That was a correct statement. That instruction told the jury that "if it should find from all the evidence beyond a reasonable doubt that the prisoner shot and wounded Josie Whitten because she refused to commit adultery with him, or from other motive, without fault on her part, then the jury should find the prisoner guilty as charged." The sole question of the case was whether Stowers did the shooting, or whether he was absent from the place where it occurred; his defense being an alibi. If he did the act, there was nothing else in the case to consider. But, if this were not so, another answer is that the court told the jury that the attorney's statement was only used in argument, and that it was the duty of the jury to consider all the instructions, thus denying the attorney's statement, and purging the statement of all harm. State v. Chisnell, 36 W.Va. 659, 15 S.E. 412. Remarks must be hurtful. State v. Shawn, 40 W.Va. 1, 20 S.E. 873.
Another complaint is that the court refused a new trial for after discovered evidence. New trials are rarely granted for this cause, and always with reluctance, and under special circumstances. Brown v. Speyers, 20 Grat. (Va.) 296. The defendant's affidavit says that he had discovered that the state's witness, Josie Whitten, stated that another person than the prisoner, naming him, had shot her. The affidavit is fatally defective. It does not even name the person expected to prove this, or say even that any person told the prisoner so, or name any person to whom the expected witness so stated. This gives no assurance that any such witness could or would be produced. The law says that the affidavit of the witness stating what he will prove must be produced. Affidavit of a party is not sufficient. Strader v. Golf, 6 W. Va. 258; Brown v. Speyers, 20 Grat. (Va.) 296; Hale v. Pack, 10 W.Va. 145. Moreover, this evidence would be used only to impeach a witness, and that newly discovered evidence cannot get a new trial in such case is settled by many cases. State v. Williams, 14 W.Va. 851; Warehouse Co. v. Pridemore, 55 W.Va. 451, 47 S.E. 258; 10 Va. & W.Va. Digest, 450.
The affidavit further says that Evan Carper the evening before the shooting counted the money in Josie Whitten's pocketbook, and again next morning after the shooting at night, and she had $2 more, and found her pocketbook on the floor. What the object of this? What is it forceful to prove? I suppose it is claimed that somebody had given her money the night she was shot, and then shot her. Why? The decisions in great number say the new evidence must be material, and not merely cumulative, and such as ought to produce another verdict. Surely the matter does not come up to this standard. State v. Betsall, 11 W.Va. 703; 10 Va. & W.Va. Digest, 449; State v. Lane, 44 W.Va. 730, 29 S.E. 1020.
The affidavit also states that Carper discovered on the floor next morning after the shooting vomit smelling of whisky, resembling food called chicken and dumpling, vomited by some one, and that Carper had eaten dinner at Josie Whitten's on the day of the shooting, and that she had prepared a large quantity of that food, and that there was a large quantity left. What does this import? Does it hint that somebody else did the shooting? Would not a jury say that the woman, sickened by the shot, vomited? How can we say with certainty what it means? Where its materiality? Would it, could it, possibly change the verdict?
And, as to the Carper evidence, why not have proven those things when he was on the stand in the trial? No diligence was shown in this matter. He lived in the neighborhood, close to Josie Whitten. The law requires diligence. He was examined as to the appearance of the room, but revealed nothing of this matter. This renders it suspicious. And why not produce Carper's affidavit that he would swear these immaterial, inconclusive things, as demanded by law above cited?
This affidavit further says that one of the bullets shot in Josie Whitten's house had been located to have struck a joist and the upper floor in a place to show that the shots were fired in the back part of the house beyond the middle from a point in the cabin different from where Josie Whitten located Stowers in her evidence. Now, first, who would so prove the bullet in the joist? The affidavit does not tell, but must do so under law above cited. It does not even point to the person to give such evidence, and is only the bald statement of Stowers, and does not say he could so state. And, second, why could not the fact have been found out before the trial? Stowers shows no effort to find this out; only says he did not know of these facts, or learn that he could prove them before the trial. It will not do to say that he did not know of the testimony. It must also appear that he used diligence to discover it. Could some one not have discovered the hole in the joist? Why not? Snider v. Myers, 3 W. Va. 195; State v. Betsall, 11 W.Va. 703; Brown v. Speyers, 20 Grat. (Va.) 296; Varner v. Core, 20 W.Va. 472. Late case Stewart v. Doak, 58 W.Va. 172, 52 S.E. 95. A verdict will not be set aside for new evidence on such trivial grounds. Only under special circumstances, when justice demands it, will the discovery of evidence during or after trial constitute a reason for setting the verdict aside, this court said in Strader v. Goff, 6 W. Va. 271, citing Nuckols v. Jones, 8 Grat. (Va.) 267. This affidavit is wholly insufficient. I should have simply said so, and not discussed it. For myself I make the remark that we, including myself, go on filling volume after volume rewriting old and settled law questioned by nobody.
We are asked to grant a new trial on the ground that the verdict is contrary to the weight of evidence. Here again we meet old law, and go over it again uselessly. Josie Whitten swore that on the night she was shot Stowers was the only man in the house save her husband, lying in bed almost deaf, blind helpless, and her little deaf and dumb boy. Her husband says that at the moment before the shooting Josie told him in Stowers' presence that man was Stowers. This is part of the res gestæ and evidence. She swears most positively that she talked with Stowers at the wood fire face to face, and knew him well. Her evidence is that Stowers shot her. She instantly lost consciousness. The defense was an alibi. Here is purely a question of fact resting on oral evidence absolutely conflicting on the very kernel of the case. In behalf of the verdict, I will say...
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