State v. McCallister , 111 W. Va. 440 ( 1932 )

Doubtless the defendant was guilty of unlawfully carrying a revolver, and it seems probable that he falsified at the trial when he testified that the prosecuting witness had a knife in his hand at the time of the affray. But these considerations should not have deprived the defendant of the right of self-defense. He was not the aggressor in either the preliminary affair at the automobile or the more serious subsequent affair. On the other hand, in both instances, the prosecuting witness demonstrated his eager desire for personal combat. At the automobile the prosecuting witness held the defendant with his left hand and beat him about the head with his right fist when the defendant had not made the slightest move toward attempting violence on the prosecuting witness. Then, after the defendant had started away, going about his own affairs, the prosecuting witness launched another attack upon the defendant merely because the defendant, as he was departing, said to the prosecuting witness, according to the latter's own version," 'I'll settle with you latter' or something similar to that."

When the prosecuting witness started toward the defendant in bellico attitude, the defendant undoubtedly had the right to appraise the situation in the light of the circumstances. The prosecuting witness had already beaten him; two shots (one fired low and the other high) had failed to halt the prosecuting witness in his onslaught. In those circumstances, surely the defendant had ample justification for believing that he was in danger of great bodily harm at the hands of his assailant. For this reason, I conclude that the defendant is being punished as a felon for exercising his simple right of self-defense.

But it is said that this is a jury question. It is, primarily. But sometimes juries make mistakes as do judges now and then. Jury verdicts are not panaceas for all ills, nor shields for injustice. I think that this man's guilt is not established beyond reasonable doubt, and that the jury was unwarranted in its finding; therefore I would set aside the verdict, reverse the judgment, and award a new trial.

Judge Litz authorizes me to say that he joins in this dissent.