74 W. Va. 657 | W. Va. | 1914
Indicted and convicted of murder in the first degree, the first error assigned by defendant is that the court permitted the State to prove by the witness Lilly the finding of an empty shell near defendant’s home about fifteen hours after the homicide, and from which the load had been removed, evidenced by the ruffled edge of th.e shell, and which had never snapped or fired, the primer having also been left in the cap; and to also prove by him that unloaded shells with primer and cap can be bought, but which do not show ruffled or torn edges, as this one did; and also and in the same connection, and without the production of the shell found and delivered by the witness to the sheriff or his deputy, to exhibit to the jury another shell, which the witness said was like the shell found on the defendant’s premises.
The finding of the shell and its condition were evidently admitted as circumstances tending to connect defendant with the homicide and to account for the character of the leaden shot and steel balls found in the body of the deceased., the steel balls according to the evidence being such as are found in ball-bearing bicycles.
A witness Haley testified that the defendant about two months before the homicide had exhibited to him four shells, stating that they were loaded with steel balls taken from an old bicycle; that defendant had given him one of the balls, which he had carried for a while, and had then put it in his trunk where he had kept it until a week or so after the shooting; that in the same conversation defendant had told liim that two of the shells were to kill Sid Reed, and the others to
We think the finding of the shell and its condition when found being so nearly connected in time, place and circumstance with the homicide, and in connection with other evidence, tended in such an appreciable degree to connect the prisoner with the shell itself as to render the evidence admissible. Of course these facts were but circumstances, but they were very important facts in the chain of circumstances developed in the evidence, tending to connect the prisoner with the crime. Of course it is possible, as suggested, that the shell found had been placed on defendant’s premises by some one else, but the jury would consider this possibility in connection with the other evidence.
In support of his contention that the prisoner was not sufficiently connected with the shell, and because of the lapse of time intervening, his counsel rely on McBride v. Com. 95 Va. 818, 824. In that case it was decided that the fact of the finding of a piece of rope on the premises of one jointly indicted with the defendant was not competent to support the theory of the Commonwealth that it was used by the prisoner in carrying the body of the deceased to the place where it was found. As the court in that case observed, there was not the slightest evidence connecting the prisoner with this rope, nor any evidence showing or tending to show the use of a rope, nor did any of the facts proven show or tend to show that any rope had been used by any one to convey the body to the place where it was found concealed in the bushes, a long distance from the place,where the rope was found. Here we have a case where the deceased was killed -with leaden shot and steel
The other point made against this evidence is that the shell used by the witness to illustrate his testimony was not the best evidence. The rule relating to best and secondary evidence, applicable in the case of contracts in writing or other written instruments, is not generally applicable on a trial for homicide, to instruments employed, or the condition of the clothes or other articles connected therewith. As a general rule such articles need not be produced in court, but may be described. Underwood v. Commonwealth, (Ky.) 84 S. W. 310; Jones on Evidence, (2nd ed.) 244. The authorities relied upon by prisoner’s counsel in support of his proposition, including State v. Lowry, 42 W. Va. 205, 208, are therefore inapplicable. They show that the rule invoked is applicable generally, if not exclusively, to instruments of writing, if the prisoner had desired to controvert the accuracy of the description of the shell found he could easily have summoned the sheriff, to whom it was delivered, and shown by him the fact of his possession and the condition of the shell.
The next point of error is that it was not proper to admit the evidence of the witness Haley as to the alleged threat of the prisoner to shoot the glass out of Mankin’s store. Of course this threat was not in itself evidence of defendant’s threat against Reed, or the deceased, but it was a part of the same conversation, and if a motion had been made to strike out the particular part relating to the shooting of the glass out of the store, no doubt it would have been stricken out. But we do not see that it was material or prejudicial. The jury would not have convicted the prisoner of the homicide because of-this evidence of his threat against the property of another. If it could have had any effect it simply showed the evil mind and intent of the prisoner, in connection with the threat against Reed. We see no prejudicial error in the admission
The third point of error, urged in connection with defendant’s motion for a new trial, is that counsel for the State, on cross-examination of the prisoner, propounded to him eei'tnin questions imputing other crimes committed by him, as to all of which questions it is conceded the court promptly sustained the objections of the prisoner’s counsel, and the witness was not required to answer. We see no reversible error in this. No such cáse is here presented as in State v. Sheppard, 49 W. Va. 582, 598. In that case the court permitted answers to such questions and comments of counsel thereon. The prosecutor should not have asked these questions, but when the court properly ruled on them, all was done that could be done to correct the error.' If trial courts could be required to set aside verdicts for such errors of counsel few eases would ever reach an ending.
The fourth point relates to- the giving of State’s instruction numbered 3. The criticisms of this instruction are, (a) that it assumes the fact and existence of malice in the heart of the prisoner at the time of the homicide, and that it was directed against the deceased; (b) that though submitting to the jury the sole question of the guilt or innocence of the accused, it then tells them if found guilty they musk find the prisoner guilty of murder in the first degree.
When- fairly considered we do not think the instruction properly subject to the first criticism. If we paraphrase it by placing the last clause first, it will be clearly manifest that the fact of malice was not assumed, thus: “If the jury believe from the evidence, beyond a reasonable doubt, that the prisoner, on the morning of the homicide, was lying in wail, with a deadly weapon, to kill Reed and by mistake killed Davis”, which of course would necessarily show malice, then it would not be “necessary to show that the malice existing in the heart of the prisoner at the time of the killing was directed against the deceased.” This would certainly be a correct statement of the law, and this was plainly what the court intended, and what in connection with all the other
The supposed error in the use of the word “must” in this instruction is especially urged. It is contended that telling the jury that they must find the prisoner guilty of murder in the first degree was an invasion by the court of the province of the jury, and o.f the rights of the prisoner under section 19, chapter 159, serial section 5595, Code 1913, to have the jury and not the court fix the degree of the crime. No one would contend for a moment we suppose that if such is the fair interpretation of the instruction it would not be error. But taking it in connection with all the other instructions given on behalf of the State and the prisoner we do not think the use of this word rendered the instruction bad. Instructions making use of this word in the same connection in homicide eases have been approved by this court in State v. Cain, 20 W. Va. 679; State v Kellison, 56 W. Va. 691, 698, and State v. Clifford, 59 W. Va. 1. Considered in connection with all the other instructions, or even abstractly, we are quite confident the jury were not misled to believe that they were thereby deprived of their right and duty under the statute to fix the degree of the crime. That the instruction did no more than tell them that if they found the facts to be as assumed the prisoner was guilty, of first degree murder, and that it was their duty under their' oaths to find him so guilty, is plainly manifest from the language employed. The court had clear right to go this far. The sense in which the word “must” was
The next points we will consider relate to the giving of State’s instructions numbered 4 and 5. A criticism common, to both is that they state the law abstractly, and not by reference to the evidence in the case. Number 4 does make reference to evidence; number 5 wholly disconnected from other instructions given might be regarded as a statement of the law
The last point is that the court improperly instructed the jury after they returned into court with their verdict of “guilty as charged in the indictment.” The instruction complained of is as follows: “Gentlemen of the Jury: You have failed to state in your verdict of what you find the defendant guilty. You will take the indictment and return to your room and specify of what you find the defendant guilty, if anything; and you are hereby instructed that there is
Finding no error we must affirm the judgment.
Affirmed: