88 W. Va. 152 | W. Va. | 1921
Prom a judgment of twelve years’ imprisonment in the penitentiary upon a verdict of a jury for second degree murder, Ed. Arrington, defendant, prays to he released and the case resubmitted to another jury for retrial. He shot Mike Yek February 9, 1920, at Iroquois, Wyoming County, and from the wound so inflicted Yek died a moment later. Those who witnessed the tragedy, besides deceased, were Albert Foy, Okey Helmandollar and defendant Arrington, each of whom testified in the order named, Foy .on behalf of the State, the other two on behalf of the defendant.
Foy’s version of the affair is substantially this: He was walking along the street about eight o’clock in the evening, and had just passed defendant and Helmandollar going in the opposite direction, when Yek approached them, Foy then being not more than 18 feet distant from them. He heard one of the two men say: “Who is that?”, to which the other responded: _ “Some d — n sneak,” but was unable to determine which of the two was the questioner and which made the response. Immediately “they commenced to miv up a little, * # * and this fellow Yek run back a little piece; I don’t know whether Arrington hit him or not; and he (Yek) had his hand on his hip; I don’t know whether he had his hand in his pocket, or whether he was pulling up his pants. * * * He started toward Arrington, and 1 saw the pistol,” and then the shot was fired.
Helmandollar and defendant substantially agree in their statement of what occurred. The former was standing not more than 12 feet from Arrington when Yek approached. According to their story, Yek said to defendant: “Where
The first assignment of error goes to the sufficiency of the indictment, hut we see no serious defect in it, and defendant has not pointed out any. The nest assignment likewise was not discussed by defendant or relied on by him before this court, and we are unable to perceive any possible ground of prejudice to him in permitting Mrs. Yek to state what little she knew of the fatal shooting of her husband, namely,' the hour when he left home to go to the store, when nest she saw him and his condition at that time, the location of the wound, his age, nationality, occupation and children. However, proof of the number, names, ages and condition of the children or their mother can have no relevancy to the issues involved in a trial for homicide.
Assignments 3, 4, 5 and 6 present the question whether the court erred in refusing to permit defendant to testify before the jury as to his purpose in firing the fatal shot. He was asked: “Now what was your purpose in firing the gun?!’ The court refused to permit him to answer, except for the purpose of completing the record, and his reply then was: “To save my own life.” He was asked further: “Did you have any other purpose in firing the shot ? ’ and after a similar refusal to permit his answer to go to the jury, he replied, on the record; “No.” Since malice, express or implied, is .an essential element of murder in the first or second degree (State v. Douglass, 28 W. Va. 297; State v. Panetta, 85 W. Va. 212, 101 S. E. 360; State v. Galford, 87 W. Va. 358, 105 S. E. 237), defendant had the right to disprove it in any legitimate manner. His mental attitude towards deceased at the instant he shot was material to his defense. In a trial for homicide, where one of the issues is self defense, it is competent for the accused to testify concerning
Assignments 7, 8, 9 and 10 involve questions relating to the admissibility of threats by the deceased to do bodily harm to the accused, made in the presence of other persons, but not communicated to him. Evidence of communicated threats tends to throw light upon the mental attitude of the accused towards deceased, while uncommunieated threats serve a reverse purpose, namely, as evidence of the mental attitude of the deceased towards the accused. Where the chief defense of the latter is self defense, it is of prime importance to determine which of the parties to the combat was the aggressor. If the accused, then undoubtedly such threats would not be admissible, for his aggression would of itself constitute an express refutation of any implication of self defense that might arise from threats of the accused. But where the evidence is conflicting as to the aggressor, proof tending to show the state of mind of the deceased at a time not unreasonably remote from the .date of the combat is relevant and material in determining whether or not it was he who forced the fighting. Uncommunicated threats of course disclose nothing with regard to the accused’s state of mind at the time of the homicide, but they possess an evidentiary value in this, that they show a prior mental condition of deceased which, if continued to the date of the combat, might have prompted him to carry out his design. State v. Evans, 33 W. Va. 417; State v. Lutz, 85 W. Va. 330, 101 S. E. 434; Wharton on Homicide (3d Ed.) § 246; 21 Cyc. 893. See also State v. Waldron, 71 W. Va. 1. Professor Wigmore in his work on Evidence, vol. 1, § 110, says: “Where on a charge of homicide the excuse is self defense, and the controversy is whether the deceased was the aggressor, the deceased’s threats against the accused are relevant. The de
The 11th assignment is not well taken, because, where self defense is an issue in a trial for homicide, evidence that the deceased was unarmed at the time of the killing is admissible. 21 Cye. 955, note 71; 1 Michie on Homicide, § 193 (2).
The remaining assignments of error, in so far as they are material upon this review, relate to the admissibility of evidence of the previous good character of the deceased, introduced by the state. Until attacked by the defense, the deceased’s character for peaceable and quiet conduct is presumed to have been good, and the state may not make it a subject of primary proof. 1 Wharton’s Criminal Evidence (10th Ed,) § 57; 13 R. C. L., Homicide, § 219. .
There was' no evidence admitted at the trial, on behalf of the accused, assailing the character of the deceased; hence the court erred in permitting the prosecution in rebuttal to introduce evidence of his good character. Until it is assailed, ' the presumption is that it was good, and no proof thereof is necessary. But we have just held that the court improperly excluded evidence, offered by the defense, of un-communicated threats of the deceased to do the prisoner harm, and upon the new trial which we are compelled to
Eor the reasons stated, we reverse the judgment, set aside the verdict, and award defendant a new trial.
Reversed and remanded.