# State v. Kelly Messer

> West Virginia Supreme Court · May 26, 1925 · 99 W. Va. 241

URL: https://www.frixlaw.com/law-library/cases/4006600

## Case

- **Full name:** State v. . Kelly Messer
- **Court:** West Virginia Supreme Court
- **Decided:** May 26, 1925
- **Citations:** 99 W. Va. 241; 128 S.E. 373; 40 A.L.R. 608; 1925 W. Va. LEXIS 140
- **Precedential status:** Published
- **Opinion:** Dissent by Hatcher
- **Judges:** Litz, Hatcher
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4006600

## Opinion text

*247
Hatcher, Judge
(dissenting):
The majority opinion finds no fanlt with the instructions given or refused at the trial * of this ease. . Its only serious criticism of the vast amount of evidence herein is the admission of the testimony of Officer Williams that he found a pistol in the road, near an automobile in which were defendant and several others. This evidence was given in answer to a general request of the officer to describe the occurrence. An objection to this request was properly overruled, as the court could not have foreseen that the answer of the officer would include evidence about the pistol. Counsel for defendant evidently considered this testimony of little consequence, as there was no motion made to exclude it. The defendant stated that it was not his pistol, and that he did not throw it where it was found. I fail to see how the evidence of a pistol in the road could have in any way prejudiced the jury in arriving at its verdict.
Venireman Atkinson, of whom defendant complains, was stricken from the panel and was not one of the twelve men who found him guilty. It is true, as stated in the majority opinion, that this venireman said he had a general feeling of prejudice against violators of the prohibition laws. In answer to the question “Do you feel that you would require him to prove himself innocent of the charge?” he replied, “Yes sir, if he can prove himself innocent of the charge I would give him a fair, square deal.” This answer does not, in my opinion, warrant the construction given it in the majority opinion when considered with the other answers of the venireman. 'He also stated that he did not know the accused; that he had not formed any opinion, and did not then have any opinion as to the guilt or innocence of the accused; that he was not then sensible of any prejudice-personally against the defendant; that he would • lay aside his general prejudice against violators of the prohibition law if selected as a juror, and would try a case of this, character just as he would try a man charged with any other-crime.
After hearing and considering the statements of this;
*248
venireman, the trial court concluded that he was qualified to act as a juror.
“A juror is not disqualified by reason of general bias entertained against a class of actions, where it appears from his testimony that he can
lay
aside that prejudice, and, uninfluenced by it, try the cause at issue solely upon the evidence and the instructions of the court as to the law.”
35 C. J. p. 330, par. 353.
With due deference to the opinion of my associates, it seems to me that the responses of the venireman brought him within the foregoing rule. The trial judge in this case is a most careful, able, and conscientious jurist. I think this court could safely trust the competency of this venireman to his judgment.
The testimony of witnesses for the State, not shown to be unfriendly to or hostile to defendant, overwhelmingly support the verdict. By this verdict, the defendant has been stripped of the presumption of innocence with which the law theretofore had generously cloaked him. His own admissions show him to have been a law-breaker of long standing, and a fugitive from justice. He points to no substantial error, but asks a reversal of this case on bare technicalities. Only by the aid of imagination can a court attach error to his trial. He was entitled to a fair trial no matter how lawless may have been his prior conduct. But after conviction, a court should certainly not strain constructions or invoke tortuous hypotheses to favor such as he. Reversals of eases similar to this one on harmless technical errors caused the terrible arraignment of a criminal trial in this country by Chief Justice Taft as being “a game of chance, with the chances in favor of the criminal.”
There is no objection to the law stated in the syllabus of the majority opinion, but I respectfully dissent from its application to this case as made therein.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4006600. Public record. Not legal advice.