59 W. Va. 1 | W. Va. | 1906
Lead Opinion
Paul Clifford, under sentence, by the circuit court of Berkeley county, of imprisonment for the period of ten years, upon conviction of the murder, of Jacob Turner, has brought his case here on a writ of error.
The deceased came to his death by a shot from a pistol in the hands of the accused, but the circumstances of the killing were peculiar and unusual in some respects. Clifford was set upon and beaten in the night time by Charles and Joseph Cook, by way of punishment for an alleged insult to Jennie Cook, the wife of Joseph Cook, in the afternoon of the same day. No provocation was given by Clifford at the time of the assault. Having been accosted by the Cooks and charged with the language imputed to him, he denied it and attempted in every way to avoid any trouble with them. At that time, Jennie Cook was absenf and the conversation continued until she came up and charged Clifford with having used the language in question, and thereupon Charles Cook struck him with his fist, and Joseph joined in the assault. At the time of the blow thus given, Clifford was standing with a pitcher of milk in his left hand, while his right hand held the pistol in the pocket of his pantaloons. There is evidence tending to show that the Cooks were aware of his possession of the pistol at that time, but, if they were not, they immediately discovered it and attempted to wrest it from him. In the-, struggle which ensued over the possession of the pistol, and during which the beating of Clifford continued, the pistol was. discharged and the ball injured one of the fingers of Charles Cook. Soon afterwards, a second discharge of it sent a ball through the thigh of Joseph Cook. While the struggle was.
The assignments of error are six in number, the first of which relates to instructions given at the instance of the State;' the second, third, fourth and fifth, to the refusal of the court to permit a witness to answer certain questions; and the sixth, to the refusal of the court to set aside the verdict and grant a new trial.
In the interest of clearness, the second, third, fourth and fifth assignments of error will be disposed of first. In the course of the examination of J. It. Clifford, he was asked if he knew the occasion for Paul Clifford having a revolver on
The evidence of communicated threats, although purporting to have been made by Jennie Cook, or all the Cooks, but not by Turner, was admissible for another reason. The evidence of conspiracy among the Cooks is amply sufficient to take the case to the jury on the question, whether they confederated and conspired to injure the accused. State v. Prater, 52 W. Va. 132. Turner accompanied them from their home toward the place at which the assault was made, very shortly before it occurred, and was found at the place which the evidence indicates was appointed by the Cooks for their rendezvous. He was present while the assault and beating were in progress, and near enough to render assistance. His relation to the Cooks, being the uncle of Joseph Cook’s wife, was such as was calculated to make him feel an interest in the matter. He was the father of the child concerning whom the original trouble had arisen. Two witnesses swear that he actually participated in the assault. All these circumstances tend to prove that he had knowledge of the common design and purpose of the Copks, and, if having such knowledge, he joined in that purpose and design, he made himself their co-conspirator and was as much at fault as the Cooks themselves. The threats previously communicated to the accused, if any, together with the assault, constituted evidence of ground for a reasonable belief on his part that he was then and there the victim of a conspiracy, and, if the deceased joined in the assault, he was their co-conspirator. Upon this evidence, it was the right and duty of the tjtury to inquire whether the provocation involved in the attack upon the accused was provocation given by Turner as well as by the Cooks. The legal effect of such provocation touches and bears upon the nature of the offense, if the shooting of Turner was intentional, as the testimony of some of the witnesses indicates, and not accidental. The intentional taking of life in hot blood and under excitement, occasioned by sufficient provocation, is not murder, but manslaughter. State v. Beatty, 51 W. Va. 232. Voluntary manslaughter is the intentional, unlawful and feloneous, but not deliberate or malicious, taking of life. The common law definition of involuntary manslaughter is an unintentional killing, resulting from an unlawful act on the part of the
Since the degree of the offense, when the killing is intentional and the evidence tends to establish provocation, as known in the law of manslaughter, depends upon the mental condition of the accused, he is entitled to prove all • the facts and circumstances that tend to show reasonable ground for belief on his part that the deceased was a party to the assault made upon him. If Jennie Cook had made the threats, and Turner had accompanied her when she came to him to obtain satisfaction and then appeared at the place of the assault with the Cooks, these were circumstances tending to produce belief, on the part of the accused, that Turner had joined them in purpose and design. The evidence of the threats, therefore, became material, although the jury might disbelieve the testimony as to Turner’s having joined in the assault. ‘ ‘Where two conspire to kill or inflict grave bodily injury on a third iDerson, and in carrying out this purpose, one of them fires a pistol at such person, who immediately pursues them and kills the one who did not fire the pistol, it is manslaughter.” State v. Gaskins, 93 N. C. 547. To the effect that, in determining the degree of the offense, the jury must consider the knowledge and belief of the a'ccused, as to the attitude of the deceased towards him during the assault, and are not controlled by his actual attitude, see 21 Am. & Eng. Ency. Law 185. “If two be fighting, and another interfere with intent to part them, but do not signify such intent, and
It has been suggested that failure of the attorneys for the accused to state to the court, when objection was made to the questions, what they expected to prove in response thereto, precludes a reversal for this error. To make such an error cause of reversal, it is only necessary that the relevancy and materiality of the evidence offered shall appear. When this is not disclosed by the nature of the question, it is necessary that it be made to appear in some other way, and this is usually done by statements of counsel, showing what he expects to prove and how it becomes relevant to the issue. Until a comparatively recent date, there was no suggestion of necessity for the statement of the anticipated answer of the witness, when the question, viewed in the light of its subject matter, the evidence in the case and the issues, disclosed its relevancy and materiality. Commencing with Kay v. Railroad Co., 47 W. Va. 467, this Court has, from time to time, added this requirement, relying for its authority, for the most part, upon Childress’ Admx. v. Railway Co., 94 Va. 186; Ins. Co. v. Pollard, 94 Va. 146; Kimball v. Carter, 95 Va. 77, and Railway Co. v. Reiger, 95 Va. 418. It is asserted in Sesler v. Coal Co., 51 W. Va. 318, and Thomas v. Electrical Co., 54 W. Va. 395. In the older Virginia decisions, having binding authority upon this Court, this requirement is not found. In Carpenter v. Utz, 4 Grat. 270, the court say it must appear, from a statement of the evidence offered and excluded, that error has been committed, in order to reverse a judgment; or, if its relevancy depends upon other facts in the cause, the party alleging the error, should present such a case on the record as shows the relevancy of the evidence rejected. They further say testimony which does not appear of itself, or upon the facts
In Gunn v. Railroad Co., 36 W. Va. 165, this Court said: “Where the form of the question propounded to the witness on the stand indicates, of itself, that it is framed and intended to elicit in reply something said at the time and place of the
Many cases from other states hold that, in order to make an exception to the action of the court in refusing to allow a witness to answer a question, the record must show what the answer would have been, if permitted. See Spaulding v. Jennings, 173 Mass. 65; Springer v. Pritchard, 22 Nev. 313; McGowan v. Railroad Co., 95 N. C. 417; Railroad Co. v. Cheek, 152 Ind. 663; Paddleford v. Cook, 74 Ia. 433; Small v. Navigation & Mining Co., 40 Me. 274; Sullivan v. Schultz, 22 Mont. 541; LeMay v. Brett, 81 Minn. 506; Kraxbergerr v. Roiter, 91 Mo. 404; Fire Ins. Co. v. Berg, 44 Neb. 522; Hummel v. The State of Ohio, 17 O. St. 628; Railroad v. Stonecipher, 95 Tenn. 311; Felker v. Grant, 10 S. D. 141; Avery v. Wilson, 47 S. C. 78; Roach v. Caldbeck, 64 Vt. 593. After careful consideration of Carpenter v. Utz and McDowell's Exr. v. Crawford, I am convinced that they are not in conflict with this rule. In the former, the excluded evidence appeared in the record. It was not a case of refusing merely to allow a proper question to be answered. In the latter, the offered evidence was documentary, and the
The first instruction complained of set forth six forms of verdict: guilty of murder in the first degree without recommendation, guilty' of murder in the first degree with recommendation of imprisonment, guilty of murder in the second degree, guilty of voluntarj^ manslaughter, guilty of involuntary manslaughter and not guilty, and told the jury that, under the indictment, they could return any one of said verdicts. Instructions Nos. 2. 3 and 4 are as follows:
2. “The Court instructs the jury that to constitute a willful, deliberate and premeditated killing, constituting murder of the first degree, it is not necessary that an intention to kill should exist for any particular length of time prior to the actual killing; it is only necessary that said inten
3. “The Court instructs the jury that where a homicide is proved, the presumption is that it is murder in the second degree. If the State would elevate it to murder in the first degree she must establish the characteristics of that crime, and if the prisoner would reduce it to manslaughter, the burden is on him.
4. “The Court instructs the jury that a man is presumed to intend that which he does, or which is the immediate or necessary consequence of his act; and if the jury believes from the evidence in this case that Paul Clifford, the prisoner, with a deadly weapon in his possession, without any, or upon a very slight provocation, gave to the deceased, Jacob Turner, a mortal wound, then the said Paul Clifford is prwna facie guilty of willful, deliberate and premeditated killing and the necessity of proving extenuating circumstances is thrown upon the prisoner; and unless the prisoner has proved such extenuating circumstances, or such circumstances arise out of the case made by the State, the jury must find the ptisoner guilty of murder in the first degree.”
The objection to instruction No. 1 is that it contains no reference whatever to the evidence. Failure to qualify it by saying that, in order to return any one of said verdicts, the jury must believe the defendant guilty of the offense named in the verdict, is the basis of criticism. The court, no doubt, intended nothing more than to advise the jury as to their power, if, from the evidence, they believed the defendant guilty of any one of the offenses charged in the indictment, to find accordingly. The other instructions given for the State do not supply this defect, if defect it be, by saying any verdict the jury should find must rest upon their belief from the evidence, but, in the instructions given for the defendant, three in number, the attention of the jury is specifically and repeatedly directed to the requirement of the law that their verdict must rest upon the evidence and their belief therefrom of the guilt of the accused beyond a reasonable doubt. Though instruction No. 1, standing alone and unaided by other instructions, might be erroneous, it is correct as far as it goes, and the defect in it having been
The last clause of instruction No. 2, relating to the element of intent- in the crime of murder, says “It is only necessary that said intention should come into existcmee for the first time at the time of such killing, or any time previous.” The existence of such intent at the time of the killing is a necessary ingredient of crime, and it is clearly not enough that the prisoner intended such purpose at some previous time. The jury must be satisfied beyond a reasonable doubt that though he entertained such purpose before the killing, it must have continued and moved him in the act of the killing. The instruction correctly quotes the law as laid down in Wright's Case, 33 Grat. 890, and approved in State v. Morrison, 49 W. Va. 210, 217, and, no doubt other cases decided by this Court. But, in these decisions, it is given as abstract law, addressed to the legal profession, and not as a formula for the guidance of a jury of laymen in the trial of a case, and is not as accurate as it might be for that purpose. However, it seems to have been deemed, by the prisoner and his counsel as well as by the attorney for the state, unnecessary to advise the jury of the necessity of the existence of criminal intent at the very moment of the killing. Two instructions relating to the element of intent were given at the instance of the accused, in neither of which was the attention of the jury directed to this point. The irresistible inference is that it was so plainly and palpably obvious'to the jury as to render such action useless. The plain object of the instruction is set forth in the first clause thereof. It was to relieve the jury of any difficulty they might encounter from finding that the conception of a design to kill and the act of killing were contemporaneous. The
The objection to instructions 3 and 4 are substantially the same as were urged against them in the case of State v. Taylor, (50 S. E. 247), 57 W. Va. 228. A further contention against the propriety of these instructions is the lack of evidence that the accused was the aggressor, or in any way in fault, at the time the assault was made upon him, and the presence of evidence tending to show that the discharge of the pistol was accidental and unaccompanied by any criminal intent. After a careful inquiry as to the propriety of giving such instructions, this Court declared in State v. Taylor,as follows: “When the state of the evidence in a criminal case tends to prove facts, from which presumption of guilt arise, under rules of evidence, established by a long and uniform course of judicial determination, the trial court may properly bring them to the attention of the jury by instructions, aptly and correctly stating them. Such instructions, if properly framed, neither assume the existence of the facts, from which the presumptions arise, nor interfere with the province of the jury as to the weight of the evidence.” Their application
Freedom from fault on the part of the accused, at the inception of the assault upon him, is a circumstance in his favor on the issue as to whether he is guilty of any offense graver than that of manslaughter, but it is clearly not conclusive in his favor, and, therefore, does not preclude the giving of instructions predicated upon the theory of murder. One who is attacked without cause, and having the greatest provocation, may nevertheless be guilty of murder. “Where the killing, although intentional, is done in passion, in heat of blood, upon sudden provocation by gross indignity, out of tenderness for the frailty of human nature, the law reduces the offense to manslaughter, but, however great the provocation may have been if there has been sufficient time for passion to subside and for reason to return, the homicide is murder.” State v. Beatty, 51 W. Va. 232; McWhirt's Case, 3 Grat. 594; Whar. Horn. 448. The time intervening between the cessation of the beating and the firing- of the shot which killed the deceased was very short, according to all the testimony, but there was an intervening period, and whether there was sufficient time for reason to regain its sway, depends upon other circumstances, such as the temperament of the accused, the nature of the provocation, his surroundings, etc., as well as lapse of time. Whar. Horn, section 449. Another element entering into the case is, whether there was any provocation on the part of the deceased, within the meaning of the law, a matter concerning which a good deal has been said herein.
Does the defense of accidental killing render these instructions improper? It is urged, upon the authority of State
A motion made to the court for a new trial on the ground of insufficiency of evidence, presents an entirely different question from that which arises upon a request for an instruction. Upon such motion the court has more extensive powers to deal with the evidence. The jury trial is complete. The function of the jury has been performed and that of the court begins. By his motion, the accused appeals from the decision of the jury to the court on a question of law. He prays the judgment of the court as to whether the evidence upon which the jury has founded its verdict is sufficient in law to sustain it. By his own act, he brings the question before the court. In entertaining this motion the court does not officiously meddle with the province and function of the jury, or the rights of parties, respecting jury trial; but simply takes under advisement and consideration the legal question presented, and, after argument and mature consideration, disposes of the motion. In this way, all confusion in, and danger of prejudicing, the jury trial, by hasty and ill-considered rulings, are avoided. In sustaining a motion to set aside a verdict on this ground, the court does not undo anything the jury has legally performed.' It simpty restores to the party what the jury, in contemplation of law, has deprived him of, or withheld from him. It is in no sense a re-trial of the case by the court, on the evidence, as the jury tried it. The court merely ascertains, from all the facts which were found by the jury, or could have been found,
It was held in State v. Henry, 51 W. Va. 283, that in criminal cases, the court, in passing upon a motion for a new trial, will reject all conflicting oral evidence of the exceptor and give full faith and credit to that of the adverse party, as was formerly done in civil cases. Whether there is any reason for discriminating between civil and criminal cases in .this respect, it is not necessary to determine now; for nothing presented by the evidence in this case would produce a result, under the operation of the new rule, different from that which is produced by the application of the old one. Having disregarded the conflicting oral evidence, adduced on behalf of the accused, it still appears that there was gross provocation to the accused, growing out of the transaction between him and the son of the deceased. The deceased was present at the assault and the accused knew the relationship existing among all these parties, as well as the purpose for which the Cooks had accosted him. As Turner was present, it is not to be assumed that the accused did not know he was there. Therefore- he had resonable ground for believing that the purpose of this assemblage was to inflict bodily injury upon him. This was done in a most unequal contest, as regards physical strength, two men assailing one. Tor the purposes of this inquiry, it must be assumed that the fatal shot was intentionally fired toward the deceased. If the shooting had occurred during the progress of this fight, the jury could not have said, without disregarding the evidence, that the accused was not then in a high state of passion and excitement, such as to preclude a finding of deliberate shooting. It did not occur until after his assailants had left him, but it did occur immediately after. J. T. Carter, one of the witnesses for the State, says: “He made about one step towards'Jake and then shot. ” On cross-examination, the same witness said the accused had fired “Just as quick as he could get himself together.” Robert Spears made the following statement in answer to a question: “Why Paul made one step toward Jake and he looked at him for about a minute and he fired.” On cross-examination he said: “Paul made one step towards Jake and shot.” This is all the
In State v. Beatty, 51 W. Va. 232, it was held that, “When time has intervened between the date of provocation and the date of the killing, the question whether the killing was done in the heat of blood is for the jury.” The application of this law requires evidence of the lapse of some period of time within which the jury might deem it reasonable to say either that reason had regained her sway, or, if not, it is reasonable to suppose that the accused had nursed and fed his anger and deliberately kept it alive. What is the rule where there has been no such lapse of time? Is the question of intent one for the jury under all circumstances, without regard to the existence or non-existence of a “cooling period?” It is often said by the authorities that intent is a question of fact, the determination of which is peculiarly within the province of the jury. It is to be observed, however, that this most frequently occurs in the discussion of the action of the court in giving or refusing instructions. As has been indicated, these rulings are made without reference to the weight or probative force of the evidence, and the declarations made by the courts of review, respecting them, are not applicable, when it is the duty of the court to deal with the weight of the evidence. A great many decisions hold that it is the duty
The better opinion seems to be that in criminal, as well as civil law, there are certain limits within which the jury must be confined. They cannot find the elements of murder or any other offense when the evidence wholly fails to establish them. That a grievous provocation immediately resented with violence, resulting in death, reduces the offense from murder to manslaughter, is a rule of law, seems to be asserted by all the books. In McWhirt's Case, 3 Grat. 594, the court entered upon a long and laborious analysis of the evidence, on the motion for a new trial, for the purpose of determining whether sufficient time had elapsed between the provocation and the killing to allow the passion of the accused to subside. Had it been a mere question for the jm’y and not for the court, why did not the court dispense with such a useless performance as a review of the evidence on the motion for a new trial? Though this Court has not, in many instances, if any at all, set aside verdicts in cases of homicide, because of insufficiency of evidence, the decisions do not deny to it the power to do so in any case in which it ought to be done. In State v. Scott, 36 W. Va. 704, this. Court said: “It is quite true that the fatal blow struck by the prisoner with an unlawful weapon of deadly character was given in what might be termed a chance med
In Rex v. Ayes, R. & R. 166, the twelve judges of England, in the year 1810, on a question reserved by the trial court, expressly decided that the question of malice is not one solely for the jury. The syllabus of the case briefly states the decision and facts of the case as follows: “After mutual blows between the prisoner and the deceased, the
It may be supposed that the uncertainty in the evidence as
If the accused knew he was shooting Turner, as is indicated by the testimony of the two witnesses whose testimony has been quoted, the conclusion must be the same, for he had reason to believe that Turner was a party to the conspiracy and was present for the purpose of aiding and abetting the assault made upon him. He knew the relations existing between Turner and the Cooks, and that the assault was the result of the transaction which had taken place between himself and Turner’s little boy. The trouble had all grown out of that incident. Jennie Cook had become involved in it, and all the parties concerned were together at the time and the place of the assault. The trivial, insignificant affair had been developed by them, the Cooks and Turner, as their presence indicated, into a sort of family feud against the accused, and all were present for the purposes of visiting, or seeing visited, upon him, a very severe chastisement. Under these circumstances, the jury were bound to find that the
In view of these principles and conclusions, we think the evidence is not sufficient to sustain a conviction of murder in the second degree, nor of any offense greater than voluntary manslaughter, and that the circuit court erred in refusing to set aside the verdict. The judgment will, therefore, be reversed and the verdict set aside and the case remanded for a new trial.
Reversed.
Dissenting Opinion
(dissenting).
I dissent because the court reverses only because the evidence is not, in its opinion, strong enough to support the verdict. It thus assumes the office of a jury — or rather takes from a jury its functions. I cannot conceive that this case presents, in this point, a question of law. It is purely á question of fact under evidence. Two witnesses say that the accused, when the Cooks had left him, and were running away, looked at Turner standing ten feet away and fired upon him, while standing with his hands in his pockets. One says the accused looked at Turner a minute and fired. The accused and his father deny this. They do not deny that Turner was ten feet away; but the father says the accused fired as he was in the act of rising from the ground. Here is conflict. There is no conflict as to the exact position of Turner when shot. Nobody says he was beating the accused when shot. This is a critical point in the case. On it turns the degree of the crime, whether murder or voluntary manslaughter. Some evidence says that Turner joined in the battery on the accused
This Court, on this conflict, finds that the evidence of the state, in these important matters, is unworthy of belief, virtually takes the evidence of the father; because if the state’s evidence is truthful, the jury could find as it did. There was as much evidence for the state in these vital matters, as for the accused, if not more. In fact, in some of them the evidence of the prisoner’s father alone controls. Once it was law that the court need not certify conflicting evidence for appeal, so final was regarded the verdict approved by a judge. Now, it is different; but when such evidence gets into this Court the rule prevails that we cannot defeat a verdict except we reject all evidence of the party against whom the jury decided conflicting with that of the adverse party, and give full faith and credit to the evidence of the latter, and if the remaining evidence tends to or goes fairly to support the verdict, it must stand unless it is deafly not sufficient. State v. Chambers, 22 W. Va. 779; Kinmmins v. Wilson, 8 Id. 584; State v. Balter, 33 Id. 319, pt. 4. We treat it as we treat a demurrer to evidence. In State v. Sullivan, 55 W. Va. 597, we said, on what we thought was sound authority, that the evidence must be considered most favorably to the verdict. But in this instance evidence to support the verdict is discredited, and full faith given to the evidence to overthrow the verdict. Whilst this Court possesses power to defeat a verdict, though the evidence is conflicting, still it should rarely do so, and only do so with extreme caution, and only where the verdict is plainly contrary to right and justice. Robertson v. Harmon, 47 W. Va. 500. This Court cannot set aside the verdict, in conflict, “merely because it thinks there is a preponderance of evidence against it or doubts its correctness,” or would itself have found a different verdict. Morien case, 102 Va. 622. Indeed, where evidence conflicts it may be seriously questioned, even at this date, as a matter of strict legal principle, whether an appellate court can grant a new trial; for it has been held that, “upon familiar principles, recognized and approved in numerous cases, when there is a conflict of evidence, an appellate coui’t will never set aside a verdict where
I dissent because I cannot consent to defeat and frustrate the administration of criminal justice by overruling verdicts approved by circuit courts after full and fair trial, when there is much evidence to sustain the verdict, simply because this Court thinks the jury and judge erred. My understanding is that where different men may form different conclusions upon the weight of a mass 'of evidence, especially if credit of witnesses is involved and the evidence is conflicting, an appellate court should not annuli the trial. I venture to repeat, touching the force of verdicts, language in State v. Bowyer, 43 W. Va. 180. “The witnesses were face to face before the judge and jury. The prisoner was before them. They saw him in the ordeal of examination. They scrutinized Iris countenance, his demeanor, his words, his tone. They were to judge of his veracity. They discredited his denial of guilt. They saw and heard all [the witnesses, all the circumstances
Why have juries, if appellate judges are to go into the business of weighing evidence as if by the ounce and pound.? We ought not to do this. It is an abuse of power, and a misconception of our functions and of the jury functions. The jury institution is sacred under our Constitution, and a verdict is to be highly respected. In long experience, I must say that, as a general thing, they evince good sense and do justice. From the frequency of requests to us to set aside verdicts, it seems to be thought that we can and will do so merely because we would not have found, judging from type, the same verdict; but such is not the rule, though instances deviating from these principles may be found, and I am very much averse to looseness in this matter on the part of appellate courts. And then, too, we must not forget that a learned and experienced judge approved the verdict, after witnessing the trial; and his opinion is entitled to great respect in an appellate court. State v. Hunter, 37 W. Va., 744, (17 S. E. 307). We must be careful lest we set ourselves up as judge and jury present at the trial, and usurp their functions.” To same effect State v. Morgan, 35 W. Va. 260, 277. It is not merely for this case that I write this dissent, but it is to express dissent against a growing tendency to depart from volumes of decisions and treat lightly verdicts approved by trial courts and overthrow them on insufficient grounds. A verdict of twelve men, as competent to' judge evidence as we, had we been present at the trial, confirmed by a judge, is overthrown by four men on evidence held as insufficient. Insufficient to prove what? Not the homicide. This is admitted. But to prove that the evidence is not sufficient to- prove murder in the second degree, but only voluntary manslaughter, a matter dependent on evidence on which a jury is peculiarly fitted to judge and entitled by law to judge.