66 W. Va. 114 | W. Va. | 1909
Lead Opinion
The indictment charged defendant with the murder of A. Murphy on the-day of September, 1907. The jury found him guilty of murder in the first degree, as charged, and that he be punished by confinement in the penitentiary during his life. From the judgment of imprisonment on said verdict pronounced by the intermediate court of Kanawha county, and affirmed- by the circuit court on appeal, defendant has brought error to this Court.
The original transcript of the record in the intermediate court, as certified to the circuit court, showed that the jury were “sworn to well and truly try and true deliverance makd between the State of West Virginia and the prisoner at the bar, and a true verdict render acoording to the evidence in fart.” The circuit court, on suggestion and motion by the prosecuting attorney, awarded a writ of certiorari, directed to the clerk of the intermediate court, returnable forthwith, requiring him to certify the record more fully to the circuit court, and at the same time produce the record book of said court, containing the true order, showing the oath actually administered to the jury. This action of the circuit court was objected and excepted to, and it is the first point of error relied on..
The record shows that the case was heard on appeal in the circuit court on the original transcript of the' record, and a true copy of the order of November 13, 1907, returned by the clerk in response to said writ of certiorari, and the original record book containing said order produced for the inspection of the court; and the court finding as a fact that said order had not been correctly certified in said original transcript, but was correctly certified in the copy thereof certified and filed by the clerk with his return to said writ, ordered the said certified copy filed and made part of the record; and, finding no other error therein, affirmed the judgment below.
On the merits, numerous errors assigned in the petition are apparently, and, we think justifiably, abandoned in the arguments and briefs of counsel for the prisoner. We will, therefore, confine ourselves to the points of error relied on respecting the prisoner’s instructions numbered six, seven, eight and nine
Omitting the words “and endeavors by violence,” in parenthesis, not in the instruction as proposed, instruction number six would have told the jury “that the dwelling house where a man lives is his home or castle, and that he may repel force by force in defense of his person, habitation, or property against one who manifestly intends (and endeavors by violence) to .commit a known felony on either, and in such case he is not bound to retreat, but may pursue his adversary until he has secured himself from all danger, and if he kill his adversary in so doing it is justifiable self defense;” number seven, that if attacked in like manner "in his own house by a person armed with a dangerous weapon, and he has reason to believe and does believe, he is in danger of losing his life, or in danger of suffering great bodily harm at the hands of his assailant, he is not required to retreat, but may defend his life or person by tailing the life of his assailant without retreating.” Instruction number six, with the words in parenthesis, is identical with defendant’s instruction number nine, approved in State v. Manns, 48 W. Va. 480,
But instruction number seven I think good in form. It was intended to present defendant’s rights as to retreating when attacked in his dwelling or castle, and to apply the law to¡ the specific facts in the case. The, question is then plainly presented by its rejection, whether there was evidence in the case entitling the prisoner to have the legal proposition covered or intended to be covered thereby submitted to the jury. Involved is the primary question whether the prisoner was in fact violently assaulted by the deceased in\. his dwelling or castle1 with intent to commit a knowp. felony, justifying the homicide; and lastly, whether the defendant was without fault — did not himself by his own conduct bring about the conditions under which he has attempted to justify the killing of his assailant. The law seems to be that, if there is no other evidence except that of the prisoner himself, he is entitled to an instruction, stating all the elements thereof, on the law of self defense. Wharton on Horn. (3rd Ed.) 355, and note 8; State v. Cushing, (Wash.) 53 Am. St. Rep. 883; People v. Lewis, (Cal.) 59 Am. St. Rep. 167. On the several questions of fact involved, the evidence, so far as it seems necessary to detail it, shows that the prisoner and the deceased were both coal miners; that the house or shanty where the homicide occurred was owned by the coal company, and for some time before had been occupied by the prisoner and deceased and three other’s as their home or lodging and (where they lived and did their cooking; that in the evening of the day of the homicide the prisoner and two' other persons were engaged in- the front room, in a game of cards, each of the pla3rers having small sums of money on the table, when the deceased came in and sat down to watch the game. A dispute having arisen between the players as to which of them the money belonged, the deceased interfered in opposition .to the prisoner’s contentions, and, in pro
Enough of the- evidence has now been detailed, I think, to show the nature and character of the attack, the part each took in it, how the house or shanty was held or occupied by defendant and Murphy, and the applicability of the proposed instruction. The evident purpose of this instruction, in connection with defendant’s general instructions given on the subject of self defense, was to emphasize his right to stand Ms ground without retreating, when attacked in his dwelling. The evidence seems to show clearly that the deceased went into the house with his gun; was the first to begin the quarrel resulting in the shooting, and it tends also in an appreciable degree to show that he was first to draw his gun and attack the defendant in a place where he certainly had the right to be, and from which place he was not bound to retreat. Of course, this house was, at least for the time being, also the lodging or dwelling place of the deceased. But, if the prisoner’s testimony be true, he had the superior right, and deceased had been notified by him to quit the premises. What is the law applicable to these facts ? Mr. Wharton, apparently on the 'authority of Jones v. State, 76 Ala. 8, says on this subject: “So a person in his own house has the same
. It remains for us to consider instructions eight and nine, refused. Number eight would have said to the jury that, where one kills another, though intentionally, but in passion, in the heat of blood, upon sudden provocation by gross indignity, or by threat of personal violence, he cannot be found guilty of murder. Number nine would have told the jury that, although they might find from the evidence that defendant killed Murphy, and that the killing Avas intentional, yet if they should further find from'all the evidence and circumstances in the case that such killing was done under the conditions assumed in the eighth instruction, he could not be found guilty of murder. Three objections were urged in argument against both these instructions: First, that if otherwise good, they are inconsistent with the theory of self defense, Avithout evidence to justify them, and properly rejected on these grounds; second, that both ignore the element of malice, a distinguishing characteristic of murder; and,
Was there any evidence on which to predicate these instructions? Abusive language was used by the deceased toward the prisoner, and vile and opprobrious epithets applied to him; but as is said by high authority: “The nearly universal rule is that, when the evidence shows an intent on the part of defendant to Mil, no words of reproach, no matter how grievous so ever, are provocation sufficient to free the party killing from the guilt of murder; nor are indecent, provoking actions and gestures, expressive of contempt or reproach, without an assault upon the person, especially when a deadly weapon is used in the killing.” Wharton on Horn., 274, section 173, and many cases cited in note, including Allen v. U. S., 164 U. S. 492, 497; Read’s Case, 22 Grat. 924, 938. On the subject of the reduction of murder to manslaughter Judge Moncure, in the latter case, says: “Words alone, however insulting, or contemptuous, are never-a sufficient provocation to have that effect, at least where a deadly weapon is used, so tender is the law of human life, and so much opposed is it to the use of such a weapon.” An exception has been in-grafted on this general rule, in some decisions, and is recognized by Mr. Wharton, Wharton on Hom. 277, and perhaps by other authorities, applicable where “foirl and opprobrious words are used in connection with vexatious acts and conduct, * * * * * if they are of such a character as to excite the passions of the
But were these instructions bad for ignoring the element of malice? Should they have contained the words, “without malice”? In State v. Dickey, supra, and State v. Dodds, 54 W. Va. 289, instructions on the law of voluntary manslaughter were approved which did not contain these words of exception, limitation or condition. It is said in the latter case, syllabus, point 2, that “The instructions given the jury must be taken together, and it is not necessary to insert in each separate instruction, all the exceptions, limitations, and conditions which are inserted in the instructions as a whole.” In the case in hand instruction number two for defendant, given, told the jury that “they must believe from the evidence, beyond every reasonable doubt, that such killing was done with malice aforethought, by defendant,- and that such malice existed at the time of the beginning of the combat in which Murphy was shot by the defendant,” and that unless they so found they could not “find the defendant guilty of murder.” Was this instruction, read in connection with instructions eight and nine, sufficient to limit the effect of those instructions to voluntary killing, “without malice” ? Mr. Wharton says, Wharton on Horn. 265, section 167: “Where a homicide is suddenly committed in the heat of blood, or violent passion, on an adequate and sufficient provocation to produce in contemplation of law, the implication of malice is repelled and rebutted, and the killing is manslaughter, and not murder.” And the same writer says, at page 314, apparently on the authority of Metcalf v. Com., 27 Ky. L. Rep. 74 (86 S. W. 534), that, “Heat of passion necessarily includes ^Without previous malice’ ”
And lastly as to the use of the disjunction “or.” Both instructions assume that the adequate provocation necessary was produced by “gross indignity”or “threat of personal violence.” They do not undertake to define to the jury the meaning of these words. The words “gross indignity” are more generally employed in proceedings for divorce, than in criminal cases, and when so employed, the indignity which will furnish good ground for divorce may be inflicted by acts or conduct rendering the condition of the injured party intolerable, and personal violence, or conduct creating fear of bodily harm, it seems, is not a necessary element of the offense. 14 Cyc. 625-6. But in the case of homicide, as we have seen, no words, however opprobrious,-will, as a general rule, constitute sufficient provocation. Some assault or equivalent act of indignity must also be inflicted. What meaning, then, would these words of the instructions have conveyed to the jury, and to what evidence or facts proven in the case would the jury naturally and plainly have applied them? If it be said that they would have understood these words as applying to the abusive and vulgar language, and the assault by the deceased with his gun, the proper answer, we think, would be that having followed these words with the words, “or threat of personal violence,” there Avas such a segregation of the fact of drawing the gun, the only act or threat of personal violence shown in the evidence and to which this language of the instructions could have applied, from the opprobrious language used, as would have confused the jury and rendered the instructions bad on this account. If the mere threat of personal violence by deceased, preceding his assault on defendant Avith his gun, as to which there was some evidence, was the threat to which the lan-. guage of the instructions was intended to apply, the answer would be that mere threats, unaccompanied by other acts in
I would reverse the judgment below for error in rejecting instruction number seven, but my associates having found no error therein, it must be affirmed.
Affirmed.
Concurrence Opinion
(concurring):
The concrete case is not fully disclosed in the second point of the syllabus. The law, requiring retreat, applies only when the prisoner has provoked or induced the affray, in which the killing was done, or was otherwise in fault. A man in his own house need not retreat from any kind of an attack by an intruder, but he cannot there or elsewhere take life unnecessarily. In this case, the killing was not preceded by any combat, blow or blows struck, or anything more than a verbal altercation. The attack, if any, was violent, deadly and felonious. In such ease, there is no duty to retreat, no matter where it occurs. Hence, the prisoner was fully protected by the instruction, embodying the law of self-defense and plainly telling the jury he was under no duty or obligation to retreat. In this state of the evidence, the place of the homicide was clearly immaterial, the law of the case being the same, whether it was in -his dwelling house or elsewhere. It
In view of this, I do not see any necessity for determining the rights of co-occupants of a house when one, after mutual combat between them, takes the life of the other, or takes his life in resisting an attack not actually or apparently deadly or felonious. That element is not in this case.
I agree to the decision. I agree with Judge Poeebnbarger in regarding instructions 6 and 7 immaterial. But I wish to add that if this were not so, the refusal of them did not affect the trial. It is not the case of a bad instruction given, but of an instruction refused. Other instructions fully presented to the jury the defendant’s right or defense of self defense, which the jury well knew without any instruction, even had not instructions fully presenting that matter to the jury been given. So, I am sure that there has been a fair trial, and that the want of those instructions did not affect it. I am opposed to the reversal of fair trials for high crimes on technical grounds. Such reversals bring odium and reproach upon the administration of the law and render life unsecure.
For this position I cited the cases in a note to Lay v. Coal & C. Co., 64 W. Va., p. 296.