55 W. Va. 597 | W. Va. | 1904
Wayne Sullivan was sentenced to the penitentiary for two
Sullivan complains that the court refused a new trial. Again and again this Court is expected to perform the function of a jury and the circuit court upon purely questions of fact. The shooting is admitted by Sullivan; but he sets up self defense. That is peculiarly one of fact in this case, and proper for a jury. State v. Newman, 49 W. Va. 724.
White had in his hands a warrant for the arrest of Wayne Sullivan which had been given him by the justice to execute. Harve Sullivan, brother of the defendant, had received from another justice a warrant to arrest White for the petty' offense of contempt to a justice in failing to return all papers in his hands to the justice, it being ascertained that he was not a bonded constable. Harve Sullivan was madé a special constable to execute this warrant, and summoned Wayne Sullivan, a brother, and John Justice, brother-in-law, to assist. They went to White’s home, Harve armed with a pistol, Wayne with a 44 Winchester rifle. White saw them coming, seized a mountain rifle and stood in his door, and warned them not to come in. He also had a pistol, which in the battle he tried to fire, but it snapped. It does not appear that he knew they had a warrant. He and his wife and son say he cocked the gun, and he accidentally touched the trigger and it went off. They swear he did not shoot at Sullivans. The Sullivans say he did. Both the Sullivans fired on White while in his house. One ball passed in the back part of the house. A ball from Wayne Sullivan’s gun entered both White’s arms, and caused the amputation of one. Both sides say by conflict in the evidence that the other fired the first shot. Certain it is that the Sullivans went to White’s house armed to the teeth to execute a warrant for a
If the question depends on weight of testimony, or inferences or deductions from facts proven, the jury are exclusively and uncontrollably the judges. The court cannot interfere in a doubtful case. The court must be satisfied that the evidence is plainly insufficient. State v. Cooper, 26 W. Va. 338; State v. Donohoo, 22 Id. 761; Vaiden’s Case, 12 Grat. 717. Where some evidence has been given to sustain the verdict, it is rarely that the appellate court will interfere. Miller v. Ins. Co., 12 W. Va. 116; Grayson’s Case, 6 Grat. 712; Sheff v. Huntington, 16 W. Va. 307, sec. 14. And where the evidence is conflicting the appellate court has still more Imitated range in
Judgment affirmed.
'Affirmed.