# State v. Hayes

> West Virginia Supreme Court · October 23, 1951 · 136 W. Va. 199

URL: https://www.frixlaw.com/law-library/cases/9615701

## Case

- **Full name:** State of West Virginia v. William Arlie Hayes, Et Al.
- **Court:** West Virginia Supreme Court
- **Decided:** October 23, 1951
- **Citations:** 136 W. Va. 199; 67 S.E.2d 9; 1951 W. Va. LEXIS 17
- **Precedential status:** Published
- **Opinion:** Dissent by Fox
- **Judges:** Riley, Fox, Haymond
- **Cited by:** 16 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/9615701

## How later opinions describe it (automated extraction)

- holding that the defense instruction on abandoned property should have been given where "the uncle of one of the defendants had told him a year before the taking that the [property] had been abandoned," and the property was located in a dump and was in a dilapidated condition

## Opinion text

Fox, President,
dissenting:
I lespectfully dissent from the result which will follow from the opinion filed by the majority in this case. I do' not question the correctness of any point of the syllabus. *216 My dissent goes to the application of Point 4 of the Syllabus which reads:
“In this jurisdiction where there is competent evidence tending to support a pertinent theory of a case, it is error for the trial court to refuse a proper instruction, presenting such theory, when so requested.”
No one will, I think, question the correctness of this statement. There are many cases which sustain it, and some of them go even farther. In the recent case of State v. Allen, 131 W. Va. 667 , 49 S. E. 2d. 847, it was held:
“Where, on the trial of an indictment for murder, the homicide charged is clearly proved or admitted, and there is appreciable evidence in the case tending to show the commission of a particular offense embraced within the charge contained in the indictment, it is error not to instruct the jury on the nature, elements and punishment for the offense to which such evidence relates, when request therefor is made either by the State or the defendant.”
In that case, the defendant was indicted for murder which, as is well known, charged the offense of murder in the first degree, second degree, voluntary manslaughter and involuntary manslaughter. In other words, had the evidence warranted, there might have been a verdict for either one of those offenses, or a verdict of not guilty. The trial court was of the opinion that, while the indictment covered all of said offenses, the evidence was such that there could not be a verdict of either voluntary or involuntary manslaughter, but that the jury must return a verdict of either first or second degree murder, or that the defendant was not guilty, and therefore refused to give tendered instructions on manslaughter. On writ of error to this Court, we made the holding quoted above because we thought there was “appreciable evidence” in the case to show the commission of manslaughter, either voluntary or involuntary.
In that case, we went into the authorities on this question at some length, and we do not think that the syllabus *217 point used in this case departs in any way from the principle laid down therein. But the statement of law that where there is appreciable evidence in a case on a certain point of defense, the court should give an instruction on that point carries with it, as corollary thereto, .the proposition that where there is no appreciable evidence on a given point of the case, the court should not confuse the jury by giving an instruction thereon. This principle is wed established by our authorities. As late as 1948, in the case of State v. Craig, 131 W. Va. 714 , 51 S. E. 2d 283 , we held:
“The giving of an instruction based on an assumption of facts which is not supported by the evidence constitutes reversible error.”
and
“An instruction which tends to confuse or mislead the jury is properly refused.”
In the body of the opinion, the Court said:
“* * * As already pointed out, however, the evidence wholly fails to show that the conduct of the defendant in causing the injury sustained by White in the collision constituted either an unlawful act or a lawful act committed in an unlawful manner, and, because there was no such evidence upon which to base the instruction, the action of the trial court in giving it was reversible error. State v. Shelton, 116 W. Va. 75 , 178 S. E. 633 ; State v. Zinn, 95 W. Va. 148 , 120 S. E. 387 ; Penix v. Grafton, 86 W. Va. 278 , 103 S. E. 106 ; State v. Donahue, 79 W. Va. 260 , 90 S. E. 834 .”
See also Bloyd v. Pollock, 27 W. Va. 75 ; Bond v. National Fire Insurance Company, 77 W. Va. 736 , 88 S. E. 389 ; Jones v. Smithson, 119 W. Va. 389 , 193 S. E. 802 .
There was, in my opinion, no appreciable evidence introduced in this case warranting the Court in giving to the jury any instruction upon the theory of abandonment. According to the opinion of the majority, the defendants testified at the trial that “they lived in a vicinity in which there were no coal mines, and they adduced evidence to *218 the effect that they were unfamiliar with the operation of coal mines and did not know whether the mine of Eastern Gas and Fuel Associates was in operation or if the property had been abandoned.” That is a clear statement that they did not know whether or not the property, with the larceny of which they were charged, had been abandoned, .and in itself is sufficient to bar any instruction on that point. The only other evidence, tending to show that the property alleged to have been stolen had been abandoned, was that an uncle of one of the defendants had told him a year before the alleged larceny that the cable and railroad frogs here involved had been abandoned, without any showing that the uncle had any knowledge of that fact or any authority of any kind to make such a statement. The majority opinion contains the astonishing statement:
“We think that the fact that the uncle of one of the defendants had told him a year before the taking that the cable and railroad frogs had been abandoned, coupled with the fact that they were on a slate dump, the frogs being rusty, and the cable covered with a greenish deposit, and that further there is substantial evidence in this case that the cable and frogs were covered with dirt, and that the cable, at the time it was taken, was partially covered by the slate on the slate dump, forms a basis for submission to the jury by instructions of defendants’ defense of abandonment.”
This means that if a wayfaring man with a truck passing along a highway, finds any old machinery, frogs, steel rail, copper wire or other machinery or material in connection with á coal mine or manufacturing enterprise, and the same is on a slate pile, partially covered, or the copper wire has become green, on the property of the owner of the mine or plants, he is at liberty to assume that it has been abandoned, especially if a year before, in a conversation with his uncle, he was told such property had been abandoned. This State, being a coal mining State, is filled with worked-out mines where much material is left on the property until further use can be found for it. Equipment used in ore and gas develop *219 ment, the lumber industry, and many other types of enterprise, are left on property throughout the State. The effect of this decision is to make such property fair prey ior everyone to take it at his will, if he can find someone to fell him it has been abandoned, and if he can find a jury to believe his story. The jury did not believe the story in this case, and found the defendants guilty, and the defendants assume, in this Court, that if the requested instructions on abandonment had been given, a different verdict might have been returned. This, of course, is possible; and if there had been appreciable evidence on the question of abandonment, I would say that the trial court should have given an instruction on the subject. My point is that there is absolutely no evidence in this case upon which the jury or the court would have been justified in holding that the property here involved had been abandoned. I do not go so far as to say that people, may not abandon property; and there are many ways of establishing that fact. The mere fact that the elements in a short time afford evidence of rust and decay, or that somebody’s uncle advised his nephew that property had been abandoned, furnishes absolutely no evidence of abandonment.
I am authorized to say that Judge Haymond concurs in this note of dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9615701. Public record. Not legal advice.