State v. Philips

153 S.E. 111, 109 W. Va. 94, 1930 W. Va. LEXIS 19

• Court: West Virginia Supreme Court
• Decided: April 22, 1930
• Docket: No. 6541
• Status: Published

Opinion

The defendant, D. M. Phillips, was convicted in the common pleas court of Cabell county on a charge of aiding and abetting in the operation of a moonshine still. The evidence of four witnesses for the state, though substantially denied by the defendant as a witness in his own behalf, amply supports the finding of the jury.

The defendant insists that the trial court erred in rejecting his instruction No. 6 and in refusing to set aside the verdict and grant him a new trial on the ground of after-discovered evidence. The instruction in question, if granted, would have told the jury that the mere transportation by the defendant of a moonshine still at the request of the operator thereof is not sufficient to convict him of aiding and abetting in its operation. As the evidence for the state shows numerous other acts of the defendant tending to prove the charge, the instruction was, for that reason alone, properly rejected. "An instruction which singles out and gives undue prominence to certain facts in evidence to the exclusion of other facts equally important and as decisive of the issues involved, is improper." State v. Ison, 104 W. Va. 217, 139 S.E. 704.

The sole purpose of the alleged after-discovered evidence, set forth in affidavits filed by the defendant on his motion for a new trial, is to impeach certain state witnesses. "After-discovered evidence, offered simply to contradict or impeach a witness, will not warrant the granting of a new trial. Wadkins v. Digman, 82 W. Va. 623, 96 S.E. 1016; State v.Stowers, 66 W. Va. 198, 66 S.E. 323; and State v. Williams,14 W. Va. 851." State v. Lemon, 84 W. Va. 25,99 S.E. 263, 265.

The judgment is affirmed.

Affirmed.