74 W. Va. 732 | W. Va. | 1914
The verdict 'of the jury was murder in the second degree of one E. K. Smithson, and the indeterminate judgment thereon complained of was that the defendant be imprisoned in the penitentiary for not less than five nor more than eighteen years.
The first point of error made is that the State failed to prove the venue, Webster County, as laid in the indictment. The evidence of several witnesses, objected to, tended to show the location of the boundary line between that county and the adjoining county by reputation, what others, some of' them living persons, had said about the line; and it was proven by one surveyor, that he had traced the line in the vicinity of the homicide for some distance by the marks on the trees, three hacks, and as so located the homicide was committed in Webster County. No evidence was offered by defendant to the contrary. The competency of this evidence is challenged on the ground that it is the hearsay of living witnesses not shown to have had any special or accurate knowledge of the location of the boundary line and whose evidence would not have been competent. Indeed, all the witnesses examined on this subject were transient persons, engaged in getting out logs for a lumber company, and whose testimony as to the boundary line, unless it be that of the surveyor, was based on what one or more of them had said to the others about the location
True, as the Attorney General argues, the venue of the crime need not be proved by direct evidence, and it is sufficient that the proof be inferential. But the evidence from which the fact may be reasonably inferred must be legal and competent evidence in the case. State v. Hobbs, 37 W. Va. 812; State v. Poindexter, 23 W. Va. 805; People v. Velarde, 59 Cal. 457, 20 Pac. St. Rep. 457. Moreover, in eases of public or general interest, such as the boundaries of counties, or other political or municipal divisions, they may be established by reputation or hearsay evidence. 2 Wigmore on Evidence, section 1586; 1 Greenleaf on Evidence, (16th ed.) section 135; 2 Jones on Evidence, (Blue Book ed. 1913) see-, tion 301. The declarations to establish such reputation must have been of deceased, not of living, witnesses. If living, the witnesses themselves should be produced. Harriman v. Brown, 8 Leigh Anno. 1041, 1046, and note; 2 Jones on Evidence, section 304a.
As we have found other error in the judgment calling for reversal, and- we think the jury may have rightfully inferred, from the evidence of the surveyor Allen, that the venue of the crime was property laid, we deem it unnecessary to decide whether the admissions of the incompetent hearsay evidence
The next point of error relied upon is, that the trial court erroneously rejected evidence to the effect that the deceased Smithson, some eight days prior to the homicide, at a lumber camp in the vicinity of the homicide, procured a pistol, and in the presence of the prisoner, required another member of the company to dance by shooting in the floor in the direction of his feet after the manner sometimes practiced in mining and lumber camps. It is contended that this evidence tended to show the violent and dangerous character of the deceased, and was so nearly connected in time, place and circumstance with the homicide as to characterize the act of the deceased on that occasion, and to constitute a part of the res gestae, and admissible under the principles stated in State v. Waldron, 71 W. Va. 1. Certainly that act constituted no part of the res gestae, it bore no relation in time, place or circumstance to the homicide.. The act was an isolated one. And while the conduct of deceased on that occasion was not commendatory, nevertheless it appears to have been done in good humor and for the amusement of himself and his associates, including the prisoner, and there was nothing in that conduct to show that the deceased was of a violent and dangerous character. We are of opinion, therefore, that the court committed no error in rejecting this testimony.
Another point of error urged is the refusal of the court below to permit answers to certain questions propounded the prisoner on the trial, as to his intent, his state of feelings, and his belief when his fatal act was committed. In State v. Evans, 33 W. Va. 417, it was decided, that under the statute removing his disability and permitting him to testify a prisoner is competent to give evidence of his state of feeling at the time of the homicide. The leading form of the questions may have been regarded objectionable, for immediately after-wards the court did permit the prisoner to testify fully as to his state of feeling and belief at the time he inflicted the fatal wounds upon the deceased, and this action óf the court we think cured any substantial error in the rejection of the evidence on the other questions.
Next, complaint is made of State’s instructions numbered 1, 2, 6, 7, 9, 12, 18, 20, 22, 23, 24, 28 and 30. Of number 1, relating to the question of reasonable doubt, the criticism is that it contains the clause “the oath of a juror imposes upon him no obligation to doubt where no doubt would exist if no oath had been administered”, apparently approved' in State v. Bickle, 53 W. Va. 597, but criticised as being improper, but not calling for reversal, in State v. Taylor, 57 W. Va. 238. For the reasons given in the latter case we are of opinion that good practice condemns it and that it ought to be omitted in instructions on this subject. True, the clause, if understood, embodies a correct proposition, but the language is somewhat obscure and might not be easily comprehended 'by the average juror, and would tend to confuse him.
Respecting instructions 6 and 9, it is not contended that they do not state correct legal propositions when justified by the facts in a case. Number 6 is substantially the same as number 3, approved in State v. Cain, 20 W. Va. 679, 710, and number 9 is the same as one approved in State v. Davis, 52 W. Va. 224. It is said of number 6 that it assumes the important fact, not justified by the evidence, that a homicide was committed by the defendant, because of bare fear unaccompanied by any overt act of deceased, indicative of an intention on his part to Mil or inflict great bodily injury on him. And of number 9 it is said that it assumes as a fact that the use of
The question then is, were these instructions erroneous because based on the false assumption of the facts? O'f number 6 we do riot, think the criticism well founded. The first paragraph of the instruction states the proposition in the abstract correctly, but by the last paragraph it is left to the. jury to say from the evidence whether the conduct of the deceased, at the time of the homicide, was of such a character as to give the prisoner reasonable ground to fear that he intended to kill or do the piisoner great bodily harm, applying the law to the concrete ease. The evidence is conflicting on the subject. We think the instruction was proper in this case for the reason stated by Judge Poeeenbarger, in State v. Morrison, 49 W. Va. 211, 217.
Instruction number 9 states the law rather in the abstract. Instructions generally ought to be applied to the case presented by the evidence, but the form of this instruction has been several times approved, notably in the cases referred to, as containing a correct legal proposition. We cannot say, as was said of it in State v. Manns, that it is wholly in conflict with the evidence. As we have said of instruction number 6, the evidence is conflicting on the question of the- slight provocation assumed in the instruction. It was for the jury to say from the evidence whether the provocation wa.s slight or sufficient to justify the assault by the prisoner. We, therefore, see nothing to condemn the instruction on this score.
We see nothing wrong with instruction number 7, relating to the subject of malice. Of course it should be jiistified by the evidence. Instruction number 12 relates to the same subject, and we see nothing wrong with it. Instruction number 18 we do not think amenable to the criticism that it is in the abstract or unwarranted' by the evidence. We think it submits the concrete case to the jury, and that there was sufficient evidence in the case to justify the submission.
Lastly, as to the defendant’s instructions. The only instructions offered by the defendant, so far as 'the record shows, are those numbered 5, 10, 22, 24, 25 and 28. There is nothing in the record showing that other instructions bearing the prior and intermediate numbers were proposed or given on behalf of the defendant, but upon certiorari the clerk of the court below has certified here other instructions, which the Attorney General insists were given on behalf of the defendant.
Instruction number 22 was rightly rejected. Nothing is urged in argument in support of it. Instruction number 24 is bad, and was rightly rejected because it omits the element of the prisoner’s actual belief that the deceased at the time of the homicide was about to kill or inflict great bodily harm upon him. Instructions number 25 and 28, we think, stale correct legal propositions. Number 25 is stated in the abstract, but had the approval of the court of Virginia in Hodges v. Commonwealth, 89 Va. 265, 272-3.
On the motion for a new trial based on the alleged insufficiency of the evidence to support the verdict it would be improper for us to make comment on that evidence. A new trial will be ordered on other grounds, and on the next trial the evidence may differ or vary,' and the jury should be left free to determine the facts from the evidence then to bo presented, uninfluenced by anything that might be said thereon by this court.
For the errors noted herein we are of opinion to reverse the judgment and award the prisoner a new trial, and it will be so ordered.
Reversed and Remanded.