State v. Vest
| Decision Date | 03 February 1925 |
| Docket Number | (No. 4972.) |
| Parties | STATE v. VEST. |
| Court | West Virginia Supreme Court |
(Syllabus by the Court.)
Error to Circuit Court, Raleigh County.
Joe Thomas Vest was convicted of unlawful assault, and he brings error. Verdict set aside, judgment reversed, and new trial awarded.
T. J. McGinnis and C. M, Ward, both of Beckley, for plaintiff in error.
LIVELY, P. Defendant, Joe Thomas Vest, was convicted of an unlawful assault upon John Vest, in the criminal court of Raleigh county, on an indictment charging him with malicious assault upon John Vest with intent to maim, disfigure, disable, and kill. He was sentenced to confinement in the penitentiary for one year. He prosecutes this writ of error, the circuit court having refused to disturb the verdict and sentence.
The assault for which defendant was indicted appears to have occurred in a field owned by him and a short distance from his house, the only persons present being defendant, John Vest the assaulted person, and defendant's wife. John was on his way home from Blue Jay, a lumber operation, and de-toured from the road in order, as he says, to cross the creek which was flooded, and came by defendant's house. Defendant was shoeing a horse in the yard in front of his house, and after a friendly conversation, the parties being near relatives, defendant took his horse out the gate and toward the barn in the field, accompanied by John. According to John's version of the fight, after the horse had been unbridled and defendant had the bridle folded in his hand, he asked defendant where the latter's son Kessler was, and was informed that the son, who had been working at Blue Jay, was following him. He then asked what he was being followed for, whereupon defendant began to abuse the witness and struck him on the head with the bridle probably twice and inflicted cuts with the bit of the bridle; and as he retreated? and attempted to get over the fence, defendant picked up a club or stick lying near and struck him on the side of the head, knocking him over the fence rendering him unconscious; and that an hour or so afterwards he recovered his senses, and found himself lying on the defendant's bed in the house, and defendant was asking him how hefelt. On the other hand, defendant and his wife testify that the prosecuting witness, after going out the gate, began,: to curse and abuse defendant and drew a knife on him threatening to use that weapon, and actually made an assault upon the defendant with the knife when he (defendant) took the bridle off the horse and struck the prosecuting witness in self-defense; and immediately thereafter picked up a chunk or piece of wood and struck him on the shoulder knocking him against the fence, which was partially down (a small tree having fallen across it), and he fell over the fence dropping his knife at that place. Defendant and wife both say that the prosecuting witness was under the influence of intoxicants. They then took him to the house where they administered to his wounds. Massey, a brother-in-law of John, who having heard of the fight came to take John home, said that John's knife was found beyond the fence, but it was unopened, and that he put it in his pocket and said nothing about it until after defendant had detailed how the fight occurred. He, and possibly another witness or so, contradicted the statement made by defendant on the trial in that he had told it somewhat differently when they were at his house on that occasion.
Much evidence was introduced to establish the fact that John, the prosecuting witness, had a bad reputation as a fighter and for turbulence when he was drinking; also, evidence to the effect that the reputation of defendant for truth and veracity among his neighbors was bad; and also from other witnesses that his reputation for truth was good. Enough of the evidence has been detailed in order to ascertain if the instructions given by the court were proper, for the main ground of error relied upon is in the giving of instructions.
State's instruction No. 3 is:
"The court instructs the jury that although the defendant has the right to testify in his own behalf, yet the jury has the right to take into consideration his interest in the case, and how far, if at all, his interest might bias or prejudice testimony and give to the evidence of each and every witness testifying in the case just such weight and credit as you may believe it is entitled to, under all the circumstances in the case."
This instruction in terms selected the testimony of defendant and directed the jury to consider his evidence and his interest in the case and to be cautious how they weighed it....
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State v. Male
...apparent interest, if any, in the result of the case. It is strongly criticized as singling out the defendant. The case of State v. Vest, 98 W.Va. 138, 126 S.E. 587, is by counsel for defendant to sustain their contention. The instruction under review here is general in its nature and the r......
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State v. Hamrick
...The instruction is obviously erroneous because it directs the jury to give extra weight to an officer's testimony. State v. Vest, 98 W.Va. 138, 126 S.E. 587 (1925), holds that an instruction about the testimony of the accused, advising the jury to consider his interest in the result of the ......
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State v. Wykle
...the use of a knife to stab Mr. Loomis nine times was excessive in relation to any reasonably perceived danger. See State v. Vest, 98 W.Va. 138, 126 S.E. 587, 589 (1925) ("The jury must put themselves as far as they can in the shoes of the [defendant] at the time of the affray and determine ......
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Evans v. Commonwealth
...discrediting his testimony or assuming that discrediting facts have been proved." 16 C.J., section 2343. See, also, State Vest, 98 W.Va. 138, 126 S.E. 587. 20 Instruction No. 11 was rejected. It deals with this Trigg Jessee, shortly after the shooting, said to McKinley, "You fired the first......