*1 and, County Ohio Circuit Court of able of the an Judge repeated of gross of the uncontradicted view department police of the of the rules of at least one violations is the view it experience, with fourteen years’ an officer Circuit Court disturb the judgment Court not to de- Therefore, motion to reverse appellant’s of that county. County of Ohio Circuit Court nied, and the judgment is affirmed. reverse denied.
Motion to Virginia West Kester Collins 12854)
(No. 23, 1971. February Decided 1971. Submitted January 22, 1971. March Opinion Dissenting *2 Stoker, Slaven, Smith, Rumo- Striker & Zone Ronald Grey J. ra, Richardson, M. in for error. plaintiff John Jr., General, E. H.
Chauncey Rrowning, Attorney George Lantz, General, for defendant in error. Deputy Attorney Haymond, Judge: term, 1968,
At the September Mingo of the Circuit Court of Collins, defendant, West Kester was County, Virginia, the 1, indicted and on for murder of Robert Evans October 1968, upon Up- his entered his of not arraignment plea guilty. on the trial of the case the returned a verdict of guilty voluntary on October 1968. The court over- manslaughter ruled the motion of the defendant to set aside the verdict and him a new trial and its final rendered grant judgment 28, 1968, October sentenced the defendant to confinement in the state of from penitentiary for a term one to five year years. To that this Court this writ of error and judgment granted supersedeas upon petition of the defendant and on Jan- 26, 1971 the case was submitted uary for decision record and the briefs and the oral printed arguments of the in behalf of the respective parties. attorneys 18,1968, defendant, Collins, On and prior May Kester a married man time forty-five years age at the of the trial children, and the father two teen-age was the owner and of a beer tavern in a remote section of operator Mingo County near the of Breeden. village The in which the building tavern was located consisted of room with large adjoining living in which the defendant and quarters made their family large home. The room in which the trouble occurred which resulted in the death of Robert Evans and his brother 18, 1968, Evans during night May approximately 23 17 feet length approximately feet width. At one bar was a quarters living end adjoining of the room near the width, top inches in and 3 feet in feet length also con- room floor. The which was “chest above high” seats machine, and several tables box, pop tained a juke located some a window and there serving patrons used box. juke distance the night o’clock on and ten
Some time between eight Evans, accompanied 18, 1968, and Riley Robert Evans May ordered into the tavern came Spaulding, their friend Tiny about one-half with and mingled and drank a of beer quantity time. at that in the tavern were dozen other who persons in Mingo lived formerly Evans had Robert Evans and Riley their residence had made years but several County Ohio, Mingo returned Columbus, they and at intervals come to Mingo County They visits. for short County recent killed in a had been of a cousin who in the burial assist of the Evans brothers exact age automobile accident. record, were than younger they but appear does not *3 during had known them defendant, that he who testified all their lives. broth- hour the Evans or an after minutes forty-five
About Marcum, also tavern, L. Jr., at the had arrived ers John officer of Marcum, law enforcement a former known as Junior women, three and Spry accompanied by County, Mingo James Vance, and Thompson, Laura Workman, Florence Loretta beers and a Marcum ordered four and the tavern came into time Mar- At the companions. himself and drink for soft bar. was at or behind the the beer the cum ordered tavern, Robert Evans Marcum entered the before Immediately to defendant that he was “going went to the bar and told the better out stay Marcum and that defendant “had whip” was to receive of it”. While was at the bar and about Marcum Evans, purchase, according from his Robert change Marcum, Marcum and asked up walked testimony him replied if he knew Robert Evans which Marcum he did and at that time knocked Marcum to the Robert Evans floor. “pulled Marcum Robert Evans his waist and grabbed him and Robert Evans to choke when myself up”. began head Marcum he was beaten about tried to break tbe grip unconscious. with rendered a bottle and was pop temporarily after Robert was that The defendant’s version of the fight and Marcum whip had told him was going Evans that he if he knew and fight had asked Marcum if he wanted to told Robert Evans and after the defendant had Robert Evans and not to could from it keep not to start trouble if he it”, struck out of Robert Evans bother and “to “nobody” stay hold around his Marcum in and then a choke “got the eye floor. and and fell to the neck” they grappled Marcum Evans beat While the Riley fight progress had taken apparently about the head with bottles that he beaten, was Marcum was severely a container. nearby head, unconscious for was rendered about bleeding ended, away crawled short and when the fight time finally, Robert Evans from the where the occurred. place fight than his no coat was smaller who wore a white shirt but also wore no a blue shirt but Evans who wore brother coat. while the fight progress defendant testified that stop participants
he called unsuccessfully them, success, a hold of with no that he tried “to get fight; them, would would in on why, Riley time I start every to smack me with going back with a bottle like was draw them, it, a hold of trying get around kept circling I me break it help up, every- made no effort to nobody it, it’ ”. He also testified stop, stop stop ‘Stop, body hollowing box nearby juke kicked him back into that Robert Evans time, imme- if were not fight at that fearing and that Marcum, kill he ran Evans brothers would stopped the diately building, got in the rear the tavern living quarters to the *4 bed, from under the mattress his pistol automatic forty-five fired and living quarters the tavern from returned to box and a second shot warning through juke shot warning window. through shot, Evans, Riley who was warning second
After the with a in his raised pop the defendant bottle facing standing and took hand, his pocket other hand toward moved his away distance was a short step toward the defendant who him and the Evans and between behind the bar which was brothers, Evans, beating was on the floor and Robert who floor, Marcum, Marcum, turned up turned from got his pocket. hand toward toward defendant and one put succession rapid At that time the defendant fired five shots in and caused which struck them the Evans brothers all of and their killed almost instantly death. Robert Evans was was shot. Evans died within a few minutes after he After told the other persons the shots the defendant firing pistol the tavern not do and he held the say anything later, minutes. Some time he them for several hand'facing it, took the reloaded it in a pistol, placed refrigerator his son to call the police. told living quarters located telephone nearest officer who could be reached police about and one-half from the tavern. Several two miles officers about one o’clock on the to arrive at the tavern began 19, and conducted or in an participated morning May they investigation tragedy. defendant, occurred,
When the in addition to the shooting Marcum, the Evans brothers and at least other eight Junior Vance, persons present. were were: Florence Loretta They Workman, Laura who had come Thompson Spry, James Marcum; tavern with a cousin and Tiny Spaulding, companion of the Evans brothers and a brother-in-law of the defendant; Charles before who Clay, shooting played some on a tunes and Ott Baisden and guitar; Josephine Baisden, wife, husband and who were close friends of the witnesses, Vance, Workman, defendant. Five eye Spaulding, Clay Thompson testified as witnesses behalf of the State, Marcum, Baisdens, witnesses, who were also eye and some character witnesses testified in behalf of the defendant.
The Baisdens testified that the defendant came from be- hind the bar and tried between stop fight the Evans brothers and Marcum before went for the none pistol; but of the five witnesses in behalf eye of the State testified that the defendant did stop before he anything fight fired *5 of
the and of them any two shots none warning gave Evans or any Riley threat or hostile act Robert Evans Workman, Vance, Clay and against the defendant. Spaulding the of permit any each testified the defendant refused to persons in the tavern to render assistance present brothers Evans before their death. the testimony some defendant and
Though testimony shots, the evi- of other as to the number witnesses varies defendant, dence, establishes testimony including in defendant, was progress, while the fight clearly them, fired a short between two shots with interval warning had and and after fight that after another short interval ended, Marcum faced and Evans had turned and Riley turned from Mar- the defendant and Robert Evans also defendant, rose to feet the defen- facing cum and also from the rapid fired five succession automatic dant shots bodies of Robert and that shots entered the pistol all five killed also Evans and Evans and them. The evidence Riley Marcum of an was victim clearly unprovoked shows Evans, which and Robert Evans Riley vicious attack by joined. Baisden, Dent, defendant, Marcum, Ott Pinkney The Junior Marcum, and Marcum testified Marcum Virgil Tom
James that the and Robert Evans Evans reputation Riley general in which community as citizens peaceable law-abiding occurred, bad, per- but the court refused to shooting mit show that Robert Evans Riley the defendant to Evans character or were men known violent dangerous reputation. court as error the action of the trial defendant assigns proof offer permit the defendant
(1) refusing were of known Robert Evans and Evans men dangerous or reputation; refusing character (2) violent Numbers 7 and 8. defendant’s Instructions give error, first the defendant of the assignment In behalf upon relies inasmuch as he self-defense to ex- contends that and as there was evidence which homicide showed cuse the deceased, Evans, show tended to that Robert upon murderous attack time of the killing, making a defendant, the character prove the defendant was entitled to deceased reputation dangerous quarrelsome homicide, excuse man. When self-defense is relied the defendant to that defense prove the burden *6 be established preponderance by of the evidence and it State by evidence introduced defendant or the by the by the and shown by both all the facts circumstances by 330; Harlow, 251, v. 137 71 S.E.2d evidence. State W.Va. 641; Zannino, 775, v. Mc State v. 129 41 S.E.2d State W.Va. Million, 1, 732; Banks, 99 104 State v. W.Va. W.Va. 138 S.E. 711, 701; 715; Coontz, 59, v. 117 S.E. 129 S.E. State 94 W.Va. Panetta, Hardin, 149, 401; v. State v. 91 112 S.E. State W.Va. Johnson, 684, 212, 101 360; v. 49 39 85 W.Va. S.E. State W.Va. 626; 665; 561, v. State v. S.E. 48 37 S.E. Hatfield, W.Va. Greer, Manns, 613; 22 480, S.E. State v. W.Va. 48 W.Va. 37 800; Jones, State v. 764. W.Va. case,
All the both in behalf of the defendant the State, and in of the defense of behalf does not establish self-defense on which defendant relied acquittal, for its of the jury verdict guilty voluntary manslaughter, found self-defense had not been established evidence. State,
This Court has said that even though murder, trial tends to show introduces evidence which circumstances, such evidence does not relieve the extenuating self-defense upon defendant of the burden establishing relies, which of the peculiar province he that it is jury self-defense, on the evidence and that weigh question to that defense will not be a verdict of a adverse set jury of the against weight aside unless it evi- manifestly Banks, dence. State W.Va. S.E. 715.
Neither Robert Evans nor Evans was armed with a Riley Neither of them weapon. time deadly dangerous any the defendant or committed made threats any against any belief that either of them justified any overt act which commit commit or intended to attack any about to defendant which would life or inflict endanger grave bodily injury upon him. to the of the According testimony himself, shots, before he fired Ro- five bert Evans Marcum, who had been on the floor choking Junior him”, had “let go to his feet had taken a got step “sort of in the direction me”. He also testified that after Robert Marcum, Evans had “let go” Robert Evans Junior “made a step like kindly pocket he was for his going reaching and, therefore, into his pocket or I something, thought both had they real guns they standing close together” and that “I was about both thought they ready let into shooting”. When asked to tell the why he fired Evans, shots that killed Robert Evans and de- fendant there, gave “When Rile raised testimony: up had a Now, bottle in his pop hand. when Q. was that? A. shot, When fired I the second he raised up with a bottle pop hand, in his and he had it— Stand Q. up there and show the jury so they it, see waist and your A. Sort of had your body. sort of in a motion like this. Stand up so can show Q. you motion, A. jury. And had it in sort of like like that. It looked *7 he was reaching to his belt or his one. And pocket what Q. did think you he was about to do if A. Two anything? things. I was thought he to throw going the bottle and I he thought was for a going go gun.” expressed belief the defendant that Evans Riley
was to throw the going bottle and he that was “going go for a was not a gun” reasonable belief and the found. jury so It was Evans, unreasonable to conclude that armed with Riley bottle, a only pop would throw it at the defendant or strike defendant, the defendant with it while the him within facing feet, fewa had a loaded in his hand from pistol which had fired already two shots. It was likewise unreasonable to be- lieve Evans, that either Robert Evans Riley or neither of whom was wearing coat or a jacket, was armed with any or dangerous weapon. deadly Though one of the investigating officers who came to the tavern some time after the shooting occurred, found blackjack the jacket of Robert Evans, he did not wear his jacket during or when he fight was shot. The evidence does not indicate that the in Robert Evans’ jacket knew presence blackjack of the dur- at time blackjack any made use of the or Evans his the tavern. ing presence at self- relies on
In a trial
homicide where the accused
of a
to support
defense and
evidence
appreciable
there is
of the deceased
the accused
theory,
may prove
reputation
Walker,
man,
v.
92 W.
as a
dangerous
quarrelsome
499,
443;
where
for murder
prosecution
Va.
S.E.
and in a
homicide and there is
excuse the
self-defense
relied
that the deceased
evidence
or
to show
showing
tending
attack
the time of
a murderous
making
the killing
defendant,
prove
for the defendant to
competent
it is
as a
dangerous
character or
of the deceased
reputation
Hardin,
149,
Defendant’s Instruction Number would have told the jury proprietor a beer tavern licensed under the laws of this State acts if he unlawfully permits conduct disorderly kind any upon premises covered his beer license or permits act any whatsoever to done which constitutes a crime under the laws of this State that the defendant in circumstances evidence at the time Robert Evans and Marcum, Riley Evans attacked was required by law to Junior take such were steps as in the reasonably necessary light existing circumstances to interfere for the purpose stopping the altercation and order the licensed beer tavern. restoring It is clear that the instruction based on foregoing the theory advanced the defendant that in circumstances existing he was law required by and take interfere such action as was reasonably stop necessary fight which the Evans brothers and Marcum were engaged. statute,
Manifestly, the Paragraphs Section (m) (p), 13, 16, 11, Code, Article amended, Chapter which to the extent pertinent here provides that it shall be unlawful (m) loud, for any licensee to permit boisterous or disorderly conduct of any kind premises or to permit the use of loud musical if instruments either or of them any disturb may peace quietude in which such community busi- * * * ness is located licensee (p) any to permit any act to be done licensed premises, the commission of which constitutes a State, crime under the laws of this not be given the force and effect of such requiring licensee to resort to whatever force may be whether necessary, he be unarmed, armed or to quell the disturbance or to subdue the persons engaged commission of an unlawful or felo- nious assault. The word “permit” as used in the statute may not be given force meaning, or effect. On the contrary, it is clear that the Legislature used that word for the purpose the licensee from preventing engaging of the fore- acts going or permitting persons under his control or other *9 premises from but was persons upon in such acts engaging intended use as not to authorize or him such force require to acts. it is may stop to or such necessary prevent Clearly one to refuse be done and a thing permit to certain acts to totally prevent different the use of force to thing require stop such acts. instruction the law and is misstates and is not which shows misleading supported the evidence by that clearly before the defendant fired of final five any shots between the Mar- fight Evans brothers Junior and the attack him cum had ended and that there was upon no for the fire defendant to shots other than the necessity two shots to an end to the disturbance. warning put
Defendant’s Instruction Number 8 would have told the jury a person who being sees serious crime committed or out person carried another his need not against upon premises stand but take such idly by, is entitled under the law to steps are necessary prevent in the reasonably engaged those commission of such crime from their criminal activ- carrying if any further and that find from ity jury should that while beer evidence tavern of the defendant Robert Evans and made an unprovoked Evans assault Marcum in the presence the defendant engaged Junior in out such assault so as to carrying person cause a reasonable to believe that serious harm inflicted bodily being Marcum or that the nature the assault was such as to put life, had danger him the defendant losing right to interfere and to all steps necessary take reasonably bring arm the assault to an end and to himself that purpose but the defendant acted at his it peril is for the jury to determine whether his conduct the circumstances shown the evidence was reasonable and This necessary. instruc- tion, like Instruction Number is not sustained and tends to mislead the jury evidence and for that it reason refused. The evidence properly shows clearly between the brothers and Evans Marcum had ended fight before fired the shots which caused their and that after fight death ended there was no neces- did for him to act as sity protect Marcum danger of death or serious As the instruction injury. was properly it
refused and because because not supported by consider tends mislead it is unnecessary the jury law as whether states the correctly determine the instruction to the another person protect person to intervene to whose is in and as to the force he degree life danger assailant; use to and those repel questions the attack discussed, are considered determined.
An
law
instruction which does
state the
correctly
not
6, Syllabus, Syden
refused.
erroneous
should be
Point
Preston
905;
stricker v.
177,
S.E.2d
151 W.Va.
150
Vannoy,
v.
Power
Light
Coke
Preston
Company
County
County
Fields,
Overton v.
420;
231, 119
146 W.Va.
S.E.2d
Company,
v.
797,
598;
Edwards,
Wilson
145
117
138 W.Va.
S.E.2d
W.Va.
v.
Moore
613,
164;
Turner,
299,
137 W.Va.
71 S.E.
77 S.E.2d
Ohio
Gilkerson v.
713;
Baltimore
342,
2d
32 A.L.R.2d
v.
Parrish
Railroad
649,
188;
S.E.2d
Company,
129 W.Va.
41
v. Cam
416;
Dorr
286,
City Huntington, W.Va.
57
50 S.E.
den,
v.
State
348;
226,
1014,
55
46 S.E.
65 L.R.A.
W.Va.
Morrison,
210,
49 W.Va.
It error to an instruction give is reversible Mancari, v. Yates 153 mislead and confuse the W.Va. jury. v. 350, 746; Sydenstricker S.E.2d 151 W.Va. Vannoy, 168 v. Pres- 905; Preston Coke 177, County Company 150 S.E.2d ton Power 231, 119 Light and 146 County Company, W.Va. Fields, 598; 797, Overton v. 420; S.E.2d 145 117 S.E.2d W.Va. v. Crede, 133, v. Matthews 672; S.E.2d Hartley 140 W.Va. 82 Gas 639, Cumberland and 77 Allegheny Company, 138 W.Va. Roush, 514; v. 398, Morrison 180; S.E.2d 110 W.Va. 158 S.E. Moore, 621, 204, 800; v. 134 S.E. 47 A.L.R. Chaney 101 W.Va. Frank Monongahela v. Traction 75 W.Va. Valley Company, v. The 1009; Building Parker National Mutual 364, 83 S.E. Association, v. 811; State 134, S.E. Loan 55 46 W.Va. Morrison, 210, S.E. 49 38 481. W.Va. in- and an must be based the evidence
Instructions sustained evidence should not struction which v. 151 Hollen 255, 151 Linger, 1, Point W.Va. Syllabus, given. Norton, v. 500, 603; 148 135 S.E.2d 330; W.Va. Frye S.E.2d v. Kinder, 352, 726; Maynard 127 S.E.2d v. 147 W.Va. Payne 783 National Fire Insurance 539, Hartford, 147 Company of W.Va. Vance, 443; 252; State v. 925, 129 S.E.2d 146 124 S.E.2d W.Va. Henthorn v. ex rel. Long, W.Va. 636, 186; 146 122 S.E.2d Shatzer v. Freeport Coal 178, 144 107 S.E. Company, W.Va. Morris, State v. 503; State v. 303, 401; 2d 142 95 W.Va. S.E.2d Cirullo, v. 56, 526; 142 W.Va. Mulroy Co-Operative 93 S.E.2d Transit 63; Rees Electric 165, 142 W.Va. Company, 95 S.E.2d Inc. v. Company, Mullens Smokeless Coal 141 W. Company, Smith, 244, Ward v. 619; 791, Va. 89 S.E.2d 140 W.Va. 86 Watkins, v. 539; 230; Higgs 844, S.E.2d 138 78 S.E.2d W.Va. Edwards, Wilson v. 613, 164; Thrasher 138 77 W.Va. S.E.2d v. Amere Gas Utilities 166, 138 75 S.E.2d Company, W.Va. Whitlock, v. 376; Ballengee 58, 780; 74 138 W.Va. S.E.2d Cato v. Silling, 694, 731, 137 certiorari de W.Va. 73 S.E.2d nied, 981, 572, 764, 348 U.S. 75 S. Ct. rehearing 99 L. Ed. denied, 924, 349 Chesa 659, 1256; U.S. 75 S. 99 Ct. L. Ed. peake Johnson, Ohio v. Railway Company 619, 134 W.Va. Davis v. 203; 60 S.E.2d Pugh, 569, 9; 133 57 W.Va. S.E.2d State v. 469; Humphreys, Neal v. 370, 36 S.E.2d W.Va. City Bluefield, W.Va. Lum 201, 779; 141 S.E. Morgan Surber, ber and Manufacturing Company W.Va. *11 v. 12; Roberts 140 Lykins, 409, 388; S.E. 102 W.Va. 135 S.E. Wilson 667, 473; McCoy, W.Va. Williams v. 93 117 S.E. Court Lincoln County 67, 486; 90 County, W.Va. 110 S.E. of Penix v. Grafton, 86 W.Va. 278, Bond v. Nation 106; 103 S.E. al Fire Insurance 736, 77 W.Va. Company, 88 S.E. 389. of the judgment
The Circuit Court of is Mingo County affirmed.
Affirmed. Bbowning, Judge, dissenting:
I dissent. It with is deference that I find in firm myself with the disagreement that this defendant majority holding had a fair trial and the of the Circuit affirming judgment Court of the Mingo upon verdict the County finding defendant is guilty manslaughter. opinion It voluntary my that the trial court committed reversible error in refusing that, permit the defendant to prove prior to the killing, of known dangerous Robert were men Evans and Evans was that it of the opinion and violent I am also reputation. Defendant’s error for the trial court to refuse prejudicial 8, had been given Nos. 7 and if either although Instructions I cured. as to other would have been perhaps the error the this Court to failure of am concerned with the particularly refuse, upon objection find error to that it reversible State, Although No. 8. the Defendant’s Instruction give error the did not as assign counsel for the error plaintiff when such instructions trial court of certain the giving counsel the instructions were over the given objection have, has trial, as it the this Court should during do, nature prejudicial noticed the judicially them and at least considered of those instructions giving 585, State v. 140 W.Va. Bragg, of error. See upon this writ was so those instructions S.E.2d 689 giving (1955). him fair trial which he as to prejudicial deny palpably Constitution of United States guaranteed by 3, 5 State’s Instructions Nos. State. In I refer to particular this to No. was somewhat though objection even conditional. Honorable Chauncey from the brief of the apparent
It and, from General of this State H. Rrowning, Jr., Attorney that there recognized that neither opinion majority trial of at issue in the principles two fundamental legal were or duty the defendant had the right case: whether (1) record; circumstances revealed under the to intervene was justified killing whether the defendant and (2) of self-defense. The ground Robert Evans deceased such delusion and made under no laboring trial court indeed to to each issue. It is interesting specific rulings to the of Instruction objected giving the prosecutor note that was “not a self defense instruc- that it ground No. 8 upon the instruction tion,” give refused trial court stated, and the majority to be hereinafter ground, another *12 another upon yet ground. objectionable found the instruction instruction, stated: “Consistent the trial court the refusing In will be refused.” To this instruction ruling, the Court’s with statement to necessary of that it meaning the ascertain the out of in chambers that occurred a colloquy revert to Collins Kester while of the presence the jury resulted witness, having the colloquy as a testifying on direct asked a question to prosecutor objection of appears page on comment Tire court’s examination. and is follows: record as into the comments my put Court: I am going case, in find the law in this as I record. I this that feel or it isn’t State, whether whether it is correct on correct, self defense arises I the law of find that an assault is made where part of a defendant his immediate himself, family of
upon where the a member arises. and servant of master agency hard, find, have looked I cannot I of of defense aid a third go self arises right party. interest, Court has As to a which this proprietary case, as
mentioned of this be- progress before it, find a proprietary interested in I that ing extremely murder, prevent, pre- interest such arises people vent this from to the class of happening before, the of ar- I have mentioned here son prevention of one’s own against property, prevention of own of a of robbery rape one’s member property one’s this law should family, though immediate law, viewpoint with the it general, modern of seems not have been the law this covered by time. up added.) to this (Emphasis order, of At this it be out I point, although may somewhat think it cite decision of Court in State pertinent to Greer, 22 fifteenth This (1883). syllabus W.Va. point of that case: be right may self-defence exercised in be-
half of a brother or stranger. Furthermore, appears body opinion: this sentence “The exercised in behalf may self-defence [sic] brother, are stranger.” may or of a It be true there cases, and, other opinions statements contained course, it is law that a to the of a good person go defense such is family member of his immediate true where *13 the exists, is relationship master servant but in none there a statement to the effect the same is not rule applicable where the is a is intervention It “stranger.” by interesting also indeed to note that Greer the case is not cited or discussed the brief of the General or the Attorney opinion the Neither is one case cited either majority. by the Attorney General or the in conflict with majority Greer the case. I believe there is a reason no such good why is cited: there authority is none.
The reason action given by majority sustaining of the trial court in to give Defendant’s Instruction refusing instruction, No. 8 is follows: “This as Instruction like Number 7, sustained by evidence and tends to mislead the and for jury that reason it was refused.” Inasmuch properly did not see fit their Instruc- majority opinion quote No. point tion I believe it advisable at this to do so verbatim: NO.
DEFENDANT’S INSTRUCTION person Court that a who jury instructs the sees a carried serious crime in process being committed against person upon out some other his prem- ises need law by, not stand but is entitled under idly steps to take all reasonably necessary prevent those in the commission of such engaged crime further; and, carrying their criminal ac- activity any if cordingly, you find from the evidence in this case that while in the owned operated beer tavern the defendant at the time in question Robert Evans and Riley Evans made an assault unprovoked Marcum, and, L. body of in the Jr., pres- John ence of the defendant so place at time and were cause engaged out that as to carrying assault reasonable person to believe that bodily serious harm Marcum, inflicted being Jr., L. or that John the nature of the assault was such as to him in put danger life, losing then Kester Collins had interfere, right steps reasonably to take all halt, necessary the assault bring defendant had the to arm himself for that purpose, but the defendant acted his peril, it is for ladies and you gentlemen decide whether the defendant’s conduct under the as in the prevailing, circumstances tiren case, was reasonable and necessary.
Refused, CWF, III showing proper whether a
With reference to the question of evi- introduction had made defendant for the been brother Riley deceased and his dence to the effect that the they in which community reputation Evans *14 men of being dangerous had lived most of their lives in character, Attorney is the this statement made violent General’s brief: the the all evidence Upon pertaining the reviewing case and applying incident in the instant shooting self-defense, it clear
various of law of is principles establish, or that tend to offered failed to proof wholly the establish, of self-defense in favor the defense defendant was not of entitled to introduce evidence as defendant. the Accordingly, the to the reputation as men of dangerous the deceased victims shooting and violent character. that issue as stated upon This is the the Court holding opinion: the majority
* * * indicated, appre- As there was no already ciable the defense of self-defense support evidence no to show that tending showing time either Robert Evans Evans was Riley of the defendant. Because of the a murderous attack killing upon making absence of such evidence not entitled show that either defendant was Robert Evans or and Evans was a man of dangerous action of reputation. violent character and the court in to admit evidence of that nature refusing added.) did not constitute error. (Emphasis “Murderous attack” is the test for the exercise of the not of self-defense. corrected its majority Fortunately, error, is the first of the syllabus point majority opinion: for this prosecution
When in a for murder the defendant relies self-defense to excuse the homicide and does show or tend to show the evidence shot when he defendant was and killed in self-defense acting deceased, will not the defendant
permitted danger- that the deceased was of prove ous, reputation. violent and character or quarrelsome If there that is so firmly is rule of law in this State any irrevocable, cannot established that it is it is that the error prosecute cross-assign a writ Court or of error this aby from an of a criminal defendant adverse favor ruling trial that rule is contained court. The only exception Code, 58-5-30, amended, in language: criminal case an indictment any [W]henever held bad or insufficient a circuit attorney general obtain a writ of or order by judgment State, court, on the application attorney, may or the prosecuting to secure review of such judg- error * * *
ment or order court of supreme appeals. There can be no doubt that when defendant is found guilty crime or found either of its not guilty court, own accord no or at the direction of the the State has appellate procedure. recourse by way It is evident General and the majority Attorney overlooked the fact that trial in this case ruled judge *15 had been made question of whether a sufficient showing the defendant to the introduction of evidence as to permit the bad character of the deceased and his brother. Lest there be in this let me the exact misunderstanding regard quote used in making ruling: language However, this, I think that the law is as far as self defense and what the defendant has testified to act, to this that if there is up how point, any regardless of that this Court can view an slight, as overt act himself, toward the that the right of self defense should be allowed to before the go jury and this defendant that would him in deny right deny essence defense at all. Therefore, it will be the ruling Court case, which come the evidence has into this as to the deceased, motion of what did they at that partic- time, ular is admissible and the to its objection admission is overruled. character Further, as to objection may and this character will be overruled
deceased come in as a I have ruled as as what part self far be, would in effect, because rule otherwise defense in case and this Court cannot verdict this directing added.) do that. (Emphasis reputation The rule as to the admissibility Wigmore 246, and, until laid down in Section Evidence, on case, the decision of I the law that thought regard this open that it was no jurisdiction longer so settled in this firmly This is what question. Wigmore says: under the peculiar Two arise overt- questions act form Shall the (1) question of the doctrine. lay whether an overt act is evidenced to sufficiently the tirely is er can master and en- reputation-evidence foundation left foi' hands the trial CourtP Unless law our practition- become a mass which no quibbles welcome, murderer will every answer must be (Emphasis par- affirmative. tially added.) It is from the of the trial dictated into clear quotation judge record above did find there was evi- quoted dence of self-defense sufficient that “this come character may I ruled as part as what have self defense.” The only cases decided this Court in which such ever preliminary a trial court considered was when such ruling by ruling defendant, was adverse to the writ of error Court had the to and did determine whether the trial court had abused its discretion in character refusing permit the reputation evidence to be admitted as to of the deceased at and his death. prior to
I want to reiterate that it is that this Court my opinion cannot of the trial court the effect finding overrule that such evidence is admissible writ of error or cross- State, of error by the inasmuch as the assignment stated, heretofore can seek a writ of in this error Court only an adverse wherein the trial court has held an ruling *16 Also, indictment to repeat, to invalid. once the trial court had made the as to the of ruling character evi- admissibility him dence it was reversible error for not to permit deceased testify defendant and his witnesses to of violent brothers bore the men reputation being wit- permit It not sufficient to dangerous character. was “peaceable nesses for reputation being to that their testify not “re- and law bad. Court has citizens was This abiding” court to the effect criticized the of a trial ruling versed” or in a for the admission of such evidence that it was sufficient admitted not but pleaded guilty murder case if the for his self-defense as upon justification and relied killing thereof the kind of as a material element act “inasmuch would appear with whom he was That have dealing.” man McCausland, 96 S.E. in State 82 W.Va. been the case of that case: point is the ninth syllabus This (1918). killing with murder admits the Where one charged his act ground and self attempts justify defense, him prove it is for proper man, only deceased was a violent and dangerous but that he had killing, about the time of the thereto. many years prior been such continuously case, objection was no serious there Incidentally, with regard of such evidence the State to the introduction but the time of killing, the deceased at or about the a time of the deceased at the character object proving did with opinion regard The Court killing. remote from the to that matter said: * * * character the deceased in Evidence violent and dangerous a regard being this at or nent, man] [for course, is, perti- the killing about the time below, the court but how and was admitted be if it could be would this evidence stronger much disposition that this or violent quarrelsome shown which was attributable to him for a only was not one short acter for time, such traits of char- possessed but that he would get many, many years. of his real in this disposition much better view
very of his if were allowed hear evidence they regard as much of his covering past in this regard character (Emphasis added.) life as was available. readily is particularly perti- has held that such evidence This Court of self-defense plea where nent and admissible
791 defendant himself was with of the acquainted reputation deceased as a man of and character. violent Kester dangerous Collins, so, if permitted to do would have testified that he had
known Robert Evans and
all of their
and
Evans
lives
knew their
reputations
be bad in that regard. This insofar
as
is
from the
pertinent
quoted
point
second
of the
of
syllabus
Porter,
390,
State
98 W.Va.
S.E. 386 (1925):
In
the mode of
general,
the violent and
proving
dangerous
that such
of
character
the deceased is by showing
reputation
was the
general
deceased
in that
and at
community
that time
that such
reputation
known to
was
the defendant.
. . .
Walker,
This
the third
point of State v.
syllabus
W.Va.
499,
he
where be
evidence of those who know
reputation
such
his
discharges
duty may be received.
Hardin,
To the same
the rule
effect is
laid
in State v.
down
91 W.Va.
Now Instruction No. 8. to revert to intended be. The purpose a self-defense instruction and not the defendant from prevent being was to that instruction 7 was similar an Instruction No. branded as aggressor. as a of it was that import, except premise proprietor establishment, de- beer combination and grocery a who was with- protect was a duty patron fendant under in the majority whom is conceded out fault and it made. Even being a and felonious attack was opinion violent shown he had clearly from the State’s evidence it before inter- serious the defendant bodily injury received Marcum, was and being beaten patron, vened. The Junior Evans, was methodically while Evans Riley choked Robert by his head. One state witness said bottles over breaking his down Marcum’s head onto was shirt flowing blood trial The court Defendant’s gave was unconscious. that he No. 4 which informed that the defendant Instruction in his behalf and own testify jurors had a right simply to disbelieve his evidence because he was no should they weigh and that consider the defendant that of other witness in any same as the case testimony course, which, law of this The defendant jurisdiction. is the Mar- unprovoked began testified that assault after it a stop he attempted cum the Evans brothers that by on turned time unarmed and that Evans Riley when him Evans kicked him with a bottle in his hand Robert two was corroborated a box. This against juke testimony other witnesses. defendant’s place brothers to the the Evans
Accompanying one the first of business on that night Tiny Spaulding, nickname, and, his real name does being apparently, name he re- in the record. record does show that appear stature. physical ceived because of his enormous the nickname started, was on floor beaten being After Marcum fight Evans, Evans was breaking Robert choked One advanced toward the bottles over his head. Spry James it when trying stop with the intent of apparently fight brothers, friend stepped of the Evans Tiny Spaulding, it,” him out of keep front him and told in substance “to which he did. neither of the opinion that
It is stated in the majority made threats any any against Evans brothers “at time which justified act any defendant or committed overt *19 about to commit or intended to belief of them was that either endan- which would attack the defendant commit any him.” It is bodily injury life inflict ger grave his or Marcum when Robert Evans saw that uncontradicted Junior told the that he entrance approaching building so you that whip he was “to so going there some conflict is Although better out of it.” keep fired the evidence, testified that after he had the defendant shot, “raised with a bottle up” Evans Riley warning second and, as stated toward defendant hand and turned his Evans, his Robert pocket. reached for opinion, the majority defendant, that at about testimony according time, the defendant and also reached in the direction of turned Vance, testi- One a witness who toward his Florence pocket. State was asked these questions fied in behalf of the made these answers: Were with time or Q. they fighting Junior
not? Do know? you A. Before he shot them? Yes.
Q. A. were They fighting. them, At time he
Q. shot were they doing any- thing?
A. were They fighting. would seem be somewhat Incidentally, conflict with that of the defendant. Another State’s witness was asked what the Evans brothers did after first warning shot fired and stated that Robert continued with fighting on Marcum the floor and that continued to Junior break his head. bottles over 2d, This contained in 40 Am. with statement is § Jur.
cases cited in support the footnotes to it: * * * A protect father has daughter husband, from to his personal violence her to go for premises purpose; and while it has held been that no such obtains in the case of a duty man and a woman whom he maintains as his mis- tress, it is not to be understood that the kill right to in defense of another is limited to cases of relation- on ship; human life contrary, may be taken the protection companion, of a or one whom a person with servant, a master charged protecting, or or even person, other a stranger, doubtless although clearer, a apparent more need protection pressing should be these latter cases. (Emphasis added.) This statement contained in 26 160: Jur., § Am. * * * homicide in supposed de- alleged [A]
fense of another is justifiable or excusable when committed one who has reasonable cause believe, and in grounds believe, to person faith good does *20 whose behalf he acts is in immi- nent of death danger or serious bodily at injury hands of an assailant. In case the
795 of neces- honest conviction acted an must have intend- deceased appear If is made to sity. it had a accused kill, is that the ed the presumption him. right slay the footnotes. statement are contained Cases this supporting under A.L.R.3d, page beginning See also For Failure Liability Annotation: “Private Person’s Duty Person.” Third Attack By To Protect Another Criminal Against it Smith, 649, 65 S.E. (1909), App. Moone v. 6 Ga. In amusement keeps place a person was held that when purpose therein for to come public invites such against business, protection be taken to promise he must he is con- of the business character as the or risks injuries expected to him might naturally suggest would ducting occurrence, their guard against not taken to where due care is Stanley In a safe egress. entering the person and to insure to this is Commonwealth, 440, 6 (1887), S.W. 86 Ky. sole headnote: excusable, he if is homicide person committing A necessary that it is belief the bona does it under fide another, and of himself the life either protect actual excusability confining an instruction is appearances, reasonable and excluding necessity, error. case: of that opinion are contained statements
These do for one may that whatever doctrine here is “The * * * and, another; on the for do may himself whole, been taken distinctions have though that one plainly better view expressed, doubts do for the other another whatever may do Law, Another writer 1 Bish. Crim. §877. himself.” uses this that fel- belief “A well-grounded language: extenuate homicide committed will is about to be ony aby not in pursuit, but prevention, committed * ** belief that a felony A bona volunteer. process by fide commission, only can be arrested which felon, makes the killing supposed death of the entertain- excusable; honestly must be but the belief and, it if ed, non-negligent, without negligence, * * * A has a person homicide. will excuse *21 either to be perpetrated threatened repel felony * * * infliction The intentional on himself or others. by any per- inflicted when it is justifiable of death is person other any himself or son in order to defend death of instant danger from immediate and obvious he, faith, harm, in and on good or if grievous bodily when necessary reasonable he inflicts it. in in believes it be grounds, * ** will a person Self-defense justify associated, whom he is those with defending in and the if believes danger; life killing, and friends be exercised the servants right may assaulted, repel- one in present, the party Law, 125d, an Crim. attempted felony.” Desty, §§ ling were slow this doc- adopt 126a. The courts extent, doubtless, fear that it trine in its full abused, and sometimes as a shelter be serve might to of who, plea those under the lives protecting others, executed their own merely guilty purposes. open objec- Court stated that the rule is not to this The then tion when properly applied. necessity; of self-defense rests right whole law and apparent necessity reasonable reason of it. It It is a society. was not derived Man, person. natural he comes into freedom and by not be denied. If it were when right, instinctive it with him in all its brought society, sense. It has been restricted proudest law in exercise to but can- necessity, its cases be, possible, it should not because now restricted protect it serves to right in law against wrong emergencies where the would felony not avail. It is the attempted of a man who sees a duty prevent possible. violence to it if This an
is to use the means active and hence he has a duty, legal right to make the resistance necessary effectual. * * [*] however, life, So great, is the law’s for human regard that he must be careful and not violate the restriction that law and society placed upon have self-defense, to-wit, he must act from necessity, apparent necessity, reasonable and not be in fault. however, this, Not only, he do but may may another do it for him. person This other such a steps case assailed, into place there attaches to him, not but also only rights, the responsibilities, of such tion life of espouses. the one whose cause he If the person protec- be in immediate and its danger, life, life for or if such requires danger necessity be then the volunteer reasonably apparent, it, taking defend to the extent of against even life, provided the defense he acts was party whose not in fault. He interferes at his if the peril person slain was fault.
* * #
The innocent cannot be sacrificed to save the guilty.
This would
in behalf of
paradoxical.
A
must not kill
volunteer
one
fault. This would be
some
what
*22
writers have termed a
He
killing.
may,
negligent
however,
fault,
do so for
not in
one
if the impend-
ing danger thus
either
brought about be
actual or
apparent.
In such a case the doctrine of self-defense in all its
principles
the
accused,
extends to the
as it would if
just
him,
had been
felony
or
attempted upon
as it
would apply to the one in
if he had done the
danger
killing.
This is
Commonwealth,
the third headnote of
Biggs
Ky.
upon reasonable grounds a is about be felony committed which can be only prevented by the kill- ing the would-be perpetrator, excusing killing. The court the opinion said: “The defense which only appellant offered was that of self-defense . .. .” The court then held that the fourth court, instruction given by the trial by which it was attempted to present that defense for considera- tion was reversible jury, error in that it limited the right of the accused to defend his, himself or another reason of “by faith, in good belief” that he or the other person was at the time in death impending danger harm great bodily the hands of the deceased “to upon the belief of the part jury that the deceased was then about to inflict death or great harm” him bodily words, or another. In other the court held should been jury have instructed that the accused himto apparent act what was
might
reasonably
or that
peril
him to be his
surrounding
the circumstances
while
held that
The court
of the one whom he was defending.
who is
of one
must,
the life
he can take
the accused
before
another,
grounds
have “such
kill
seriously injure
about to
as,
judgment,
reasonable
for his belief
the exercise
held
court further
belief to arise.” The
would cause such a
necessity
for the
from his belief
to so act “arises
to the
it,
necessity
of the
from the belief
possible
which seems to be universal (with
for it.”
rule
decision of
in view
of West Virginia
exception
thusly:
was stated
case)
Court
defense,
do in his own
lawfully
one may
Whatever
faith, based
him. A belief in good
do for
another may
belief,
felony
such
reasonable
upon
is
prevented by
grounds
commission,
only
and which can
process
perpetrator
of the would-be
killing
Crim-
Wharton’s
killing.
will excuse the
felony,
Law,
Law, §533;
....
Criminal
Bishop’s
§877
inal
cases are
opinion forty-eight
Near the end of the majority
cor-
does not
“An instruction which
cited under these rules:
* * *
be refused.
state
law is erroneous and should
rectly
which tends
It is
an instruction
reversible error
give
* * *
based
must be
Instructions
mislead and confuse the jury.
which is not sustained
and an instruction
upon the evidence
*23
what-
complaint
no
I have
evidence should not be
by
given.”
case that
of law nor with a single
with those principles
ever
criminal
only
the
Incidentally,
cited in
of them.
support
is
Morrison,
210,
the issue other Upon ground no of self-defense. such evidence admissible a case homicide. (Emphasis added.) It is my opinion that this Court should its have of own motion, error, although formally assigned found that 3, 5 State’s Instructions Nos. and 7 objectionable were improper and that when objection over the of counsel given Sauls, for the defendant In were reversible error. State v. 184, W.Va. S.E. 670 (1924), theory propounded by these instructions that murder automatically comes into being upon killing person one another deadly firing weapon totally completely This is the rejected. eighth *24 of Sauls point the in syllabus the case:
800 malice, the may infer jury An instruction that unlawful kill, and the willfulness from intent to obtained, and weapon previously
use of
deadly
a
the circumstances
any
which omits mention of
the case which
rebut such
jurors,
minds
might,
inferences, is erroneous.
case:
seven of that
point
is
pertinent part
syllabus
This
murder, which
trial of one for
instruction
[A]n
to be
presumed
homicide is
that a
charges
without
referring
degree,
murder
the second
ab-
of the instant case
circumstances
particular
comprehensive.
stract
too
559,
this
Best,
facts shown are stated, Instruction No. 8 as heretofore clear and Although, mislead the possibly could unambiguous, juiy *25 that, evidence, supported opinion it is by my overwhelming has, not incorrect, even that to the Court assuming be 3, 5 and 7 considered prejudicial, Instructions finding Nos. inter- to determined “the law as to a right person the vene whose life in protect danger to another is person the to force repel the use to the attack degree he may assailant,” a the opinion. that from being majority quotation the did not tell that jury
Defendant’s Instruction No. 8 the prevailing defendant even under circumstances then the the a and kill pistol, to secure to the barroom a return right in fact, Evans In the most cautious brothers. it couched the if find from jury informs the language merely they upon that such an was made being assault Junior per- to cause a Marcum the Evans brothers as reasonable harm inflicted son that serious bodily being to believe to upon put him or that the of the assault was such as nature had the him life that the defendant in his danger losing intervene, bring take to steps reasonably necessary all right to halt, to arm himself for that the to a even the right assault acted at if that were “but defendant purpose necessary, whether, to under his and it for the decide peril,” jury him then it was for prevailing, necessary circumstances course, Of arm to the assault. stop to himself intervene as to defendant it been whether the jury question have may still after could stopping fight. went too far offense, when defendant of some but guilty have found the open failed to this instruction the door was court give trial to brand him an and in fact most aggressor prosecutor are based that instructions theory the State’s was an aggressor.
It from a of the decisions of other juris- is evident review this all of the authorities subject dictions and is, land, law in with the instruction is conformity Union, unless including West Virginia, state every overruled, disapproved, Greer be- distinguished is to case the defendant intervened his protect cause assault of the As here- an deceased. against alleged brother General brief neither nor Attorney tofore stated attempted their the Greer opinion distinguish majority case upon that ground Actually other. the evidence this case with regard for the necessity intervene to the life save Marcum is much stronger Junior than was the evidence in the Greer decided case. Although eighty-nine years it ago, day has been overruled or criticized decision by any of this Court including present Furthermore, decision. it is evident that this has Court never made a distinction between the to the defense of go a relative as other distinguished person some although trial court as evidently the heretofore noted was mistakenly of that belief. It also clear from the citations of authority in this opinion rule is that general person in- *26 tervene if the protect circumstances warrant it to from serious bodily or death a injury stranger” “even if the one attacked is without fault. Briefly, these are the facts in the Greer case: On the 19th day M. January, Greer was drunk John on a street in the Ripley, seat of county and County, Jackson deceased, some from although distance the called the latter “a damned scoundrel and a cowardly thief.” The deceased Greer, removed his coat and advanced toward although John there a in the was conflict evidence as whether to he had a hand, in his Greer, knife but when he came near to John Greer, the defendant was said (who sober) to the James deceased, we are stop; drunk,” sober and “Bobby is and John deceased “That all replied, right, but I don’t intend take to his The evidence shows that slang.” immediately thereafter attempted pass the deceased to around the defendant toward Greer when the defendant struck him in the neck with a John pocket knife, a wound inflicting from which he died shortly circumstances, thereafter. Even under those the court to gave the No. 13 which jury Instruction the following language: If believe from the jury the evidence that the prison- Greer, brother, er and M. his on the day John
the homicide were on the together sidewalk of a pub- lic street in the town of Ripley, in this and county, before the immediately affray which the fatal Greer, wound was the said M. given at dis- a John deceased, tance of abount that the deceased was feet from [sic] and on the sitting door-step of his street, father’s store on the same applied abusive deceased, to the said and that language thereupon and his coat feet, off his threw deceased the rapidly rose Greer, M. the said upon advanced John distance; if and short prisoner was behind the who the all the evidence from further believe jury M. the said deceased assaulted case that the John manner, such circumstances Greer, or in such under apprehending for grounds reasonable as to furnish a harm, was and there him great bodily do design imminent danger grounds believing reasonable and accomplished, would such be design did believe and had grounds reasonable prisoner believe imminent, justified was was he such danger in killing appearances, such acting he had reasonable if without retreating, deceased grounds killing did that such believe believe kill- danger, the the apparent was ing to avoid necessary excusable, although such circumstances is under out that the appear- afterwards have turned it false, there in fact no design were ances do the danger nor bodily injury, his brother prisoner great done; immi- and as it would which prisoner nence of the threatened the danger brother, in the killing his and the necessity instance, was the hut prisoner judge, first ac- his as the must pass acted at peril, jury his actions viewing tions prisoner’s premises, from the killing; time standpoint all from the facts circumstan- if the believe prisoner ces in the case that reasonable did immi- to believe and Believe the danger grounds nent, killing necessary and that the to protect harm, bodily or his brother he is great himself *27 in his pocket-knife excusable for using possession or in defense of —his own defense his brother. (Emphasis added.) 8, which instruction and Defendant’s Instruction No.
That trial court and which Court refused was refused error, as to the indistinguishable find was reversible are to the situations faced applicable law to Greer case and the defendant instant case. The repeated they will not be inasmuch as in the instant case facts both in length opinion stated some the majority have been at note testi- Tiny from except Spaulding’s opinion and this State, that before and the Evans a witness of mony, Columbus, Ohio, two purchased eight-packs left they brothers of beer which drank they on their way Huntington, the evidence shows that at Robert least was drinking the defendant’s place. The evidence is uncontroverted that Marcum was sober and in no the alter- provoked way Junior was, cation. He to use a word that is contained in the Greer opinion, Collins, defendant, “faultless.” Kester had a responsibility to intervene that beyond ordinary specta- and, tor as show, the cases heretofore cited have been might civilly liable to Marcum had he not done what Junior necessary protect his from patron death or great bodily Furthermore, harm. he was the operator of a combination grocery-beer establishment and had a license from Beer Commissioner Code, 11-16-13, as a beer retailer. amended, as provides that such a licensee has responsibility prevent any act done being upon the licensed which premises constitutes a State, crime under the laws of this the violation of which would subject the defendant possible revocation of his license. brothers, The aggressors were the Evans the record reveals no motive for the vicious assault which they made Marcum an unless inference be drawn from the fact that he was a former sheriff of deputy Mingo County and the Evans brothers had a reputation as being men of violent and dangerous character.
To repeat said, what has heretofore been it is evident from the evidence of one or State, more the witnesses for the defense, well as the witnesses for the Marcum had Junior been only seriously injured but that a reasonable man could that if the infer assault continued he would be killed. It was under only those circumstances and after he had tried unsuccessfully stop the assault without a weapon shots, defendant secured a and fired pistol two warning him, when the brothers “turned” on one with a bottle in his hand and each for his reaching pocket, fired five more shots succession which rapid resulted in their deaths. It is diffi- cult to understand how those under circumstances Defen- dant’s Instruction No. 8 should not have been given, and it it was opinion reversible error my to fail to do so.
I would judgment reverse the of the Circuit Court of Mingo and remand the case to that County court for a new trial.