State v. Phillips

109 W. Va. 94

Opinion

Litz, Judge:

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 dé- fenclant as a witness in bis own bebalf, amply supports tbe finding of tbe jury.

Tbe defendant insists that tbe trial court erred in rejecting bis instruction No. 6 and in refusing to set aside tbe verdict and grant bim a new trial on tbe ground of after-discovered evidence. Tbe instruction in question, if granted, would bave told tbe jury that tbe mere transportation by tbe defendant of a moonshine still at tbe request of tbe operator thereof is not sufficient to convict bim of aiding and abetting in its operation. As tbe evidence for tbe state shows numerous other acts of tbe defendant tending to prove tbe charge, tbe instruction was, for that reason alone, properly rejected. 1 ‘ 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.5 ’ State v. Ison, 104 W. Va. 217, 139 S. E. 704.

The sole purpose of tbe 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 tbe 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.

Tbe judgment is affirmed.

Affirmed.