Syllabus, DeLuz v. Board, 135 W. Va. 806, 65 S.E.2d 201; point 1, syllabus, Wickline v. Monongahela Power Company, 139 W. Va. 732, 81 S.E.2d 326. See also Ferguson v. Pinson, 131 W. Va. 691, 50 S.E.2d 476; Closterman v. Lubin, 113 W. Va. 353, 167 S.E. 871; Armour Fertilizer Works v. Finnell, 110 W. Va. 416, 158 S.E. 510; Cannady v. Chestonia, 106 W. Va. 254, 145 S.E. 390; Maguet v. Frantz, 95 W. Va. 727, 124 S.E. 117, 37 A.L.R. 1450. In view of the conclusion reached upon the controlling question of the insufficiency of the proof to establish actionable negligence, it is unnecessary to consider or discuss the other grounds assigned and relied upon by the defendant to reverse the judgment of the circuit court and the judgment of the court of common pleas, except to say that, for the reasons hereafter stated, Instruction No. 7 and Instruction No. 8, offered by the defendant, were properly refused.
State v. Crummitt, 129 W. Va. 366, 40 S.E.2d 852; State v. Hudson, 128 W. Va. 655, 37 S.E.2d 553, 163 A.L.R. 1265. "Where the verdict of a jury is wholly without evidence on a point essential to a finding, or the evidence is plainly insufficient to warrant such finding by the jury, the same will be set aside and a new trial awarded." Point 2, syllabus, Closterman v. Lubin, 113 W. Va. 353, 167 S.E. 871. Other decisions of this Court to the same effect are State v. Woolridge, 129 W. Va. 448, 40 S.E.2d 899; Clise v. Prunty, 112 W. Va. 181, 163 S.E. 864; Mingo Drilling Company v. Persinger Supply Company, 111 W. Va. 278, 161 S.E. 234; Armour Fertilizer Works v. Finnell, 110 W. Va. 416, 158 S.E. 510; Bell v. Huntington Development and Gas Company, 106 W. Va. 155, 145 S.E. 165; Jones v. Kessler, 98 W. Va. 1, 126 S.E. 344; Magnet v. Frantz, 95 W. Va. 727, 124 S.E. 117, 37 A.L.R. 1450; Dunbar Tire and Rubber Company v. Crissey and Riley, 92 W. Va. 419, 114 S.E. 804; Hatfield v. Workman, 35 W. Va. 578, 14 S.E. 153; Wandling v. Straw and Morton, 25 W. Va. 692. It is axiomatic that the guilt of a defendant in a criminal case must be established by competent evidence beyond reasonable doubt and that the burden of proving a person accused of crime guilty, not merely by a preponderance of the evidence, but beyond reasonable doubt, rests upon the State. State v. Crummitt, 129 W. Va. 366, 40 S.E.2d 852; State v. Hudson, 128 W. Va. 655, 37 S.E.2d 553, 163 A.L.R. 1265; State v. Campbell, 115 W. Va. 198, 174 S.E. 797; State v. Scurlock, 99 W. Va. 629, 130 S.E. 263; State v. Dudley, 96 W. Va. 481, 123 S.E. 241.
A verdict of a jury which is wholly without evidence on a point which is essential to a finding or which is based on evidence plainly insufficient to warrant such finding, will be set aside and a new trial will be awarded. Closterman v. Lubin, 113 W. Va. 353, 167 S.E. 871; Armour Fertilizer Works v. Finnell, 110 W. Va. 416, 158 S.E. 510; Cannady v. Chestonia, 106 W. Va. 254, 145 S.E. 390; Maguet v. Frantz, 95 W. Va. 727, 124 S.E. 117, 37 A.L.R. 1450. Because of the insufficiency of the evidence to establish the relation of master and servant between the defendant, B. D. Pinson, and Russell Ferguson at the time of his injury the judgment must be reversed, the verdict set aside, and the case remanded for a new trial.
00 due on promissory notes given in 1926 and 1927, and attached sixty-three shares of stock standing in her name on the books of the Ridge Land Company, a West Virginia coroporation. Mary Finnell, daughter of defendant, intervened, claiming ownership of the stock, the worth of which was established at approximately $100.00 per share. On a former hearing (Armour Fertilizer Works v. Finnell, 110 W. Va. 416, 158 S.E. 510) the case was remanded on the ground that the verdict was without evidence to support it, the Court pointing out in its opinion, to which reference is made for a full statement of the facts, that it clearly appeared from the record that the intervenor, at the time of the execution of the bill of sale to her, did not have any of the inheritance money received from her grandfather's estate with which she could have paid her mother cash for the stock. On the re-trial the issue was limited to the ownership of the certificate of twenty-six shares held by the First Huntington National Bank to secure an indebtedness of $800.00.