66 W. Va. 375 | W. Va. | 1909
Lead Opinion
Upon an indictment in the criminal court of Raleigh county, charging defendant with the murder of one Lilly, the jury found him guilty of murder in the second degree, and' the judgment thereon of the criminal court, that he be imprisoned in the penitentiary for twelve years, being affirmed on appeal by the circuit court, he has brought the case here for review on writ of error.
The sufficiency of the indictment, tested by demurrer thereto in the court below, is challenged here. The objection to it is, that it is in two counts, and that the first count does not, as required by section 8, article 2, of the Constitution, com elude “Against the peace and dignity of the State.” The theory is that because there is interpolated therein, after the words charging the crime, and before the conclusion, “Against the peace and dignity of the State,” the charge that defendant had been before sentenced in the United States, to a period of confinement in the penitentiary for the murder of one Laws, in Surry county, North Carolina, the latter charge constitutes a separate and distinct count to which the conclusion, “Against the peace and dignity of the state,” alone applied. The point is without merit.
The next error assigned is the giving of instructions number one and two for the state. The first is: “The Court further instructs the jury that where a homicide is proved, the presumption is that it is murder in the second degree, and the burden is on the state of showing that it is murder in the first degree; and upon the accused of showing that it was without malice, and is, therefore, only manslaughter, or that he acted lawfully and is therefore not guilty, and in arriving at a verdict in this case as to the degree of guilt, if any, the jury should take into consideration all the evidence, both that for the state and defense.” This instruction was held good in Hill v. Commonwealth, 2 Grat. 595, and State v. Cain, 20 W. Va. 709; but it is said to be inapplicable; that the pre
The objection to instruction number two is more serious. It is as follows: “The court further instructs the jury that it cannot be inferred from the bare a.ct of striking, without any dangerous weapon, that the aggressor intended to kill, and unless there be a plain manifestation of a felonious intent, no assault, however violent, without a deadly yeapon, will justify killing the assailant under the plea of necessity; and although the jury may believe from the evidence in this case, that the deceased, Bud Lilly, and A. J. Shumate, or either of them, did in fact assault the prisoner, Robert Gravely, by striking him with the fist, yet the prisoner would not be
“'And in passing upon the case as to the immanency of the danger which threatened the prisoner, and the necessity of the killing in the first instance the prisoner is the judge; viewing it from the prisoners stand point at the time, but he acts at his periL as the jury must pass upon his action in the premises/’ The vice of this instruction is not in the conclusion in its first paragraph, but in the first proposition thereof, by which the latter is limited, namely, “that it cannot be inferred from the bare act of striking, without any dangerous weapon, that the aggressor intended to kill, and unless there be a plain manifestation of a felonious intent, no assault, however violent, 'without a deadly weapon, will justify killing the assailant.” We think that although the conclusion of the instruction contains the words, “or to inflict upon him somfe serious bodily harm,” the first clause of the instruction was calculated to mislead and deceive the jury, and to induce the belief that defendant was justified in killing his assailant in self defense, the assault being without a dangerous weapon, unless there was a plain manifestation of a felonious intent to kill him, “however violent” the assault may have been. This is not the law. It is conceded that when one is assaulted he may repel force with force, and may even take the life of his assailant, if it is plainly manifest that he is in danger of sustaining serious bodily harm. By section 4208, Code 1906, if one by any means cause another bodily injury with intent to maim, disfigure, disable, or kill, he is guilty of a felony. The evidence in this case shows and tends to show: That Bud Lilly, the deceased, was, at the time the shot was fired, assisting Shumate, the principal assailant, and had then on his person a pistol, which he had taken from the bed in the room where the homicide occurred; that defendant had not assaulted, or attempted to assault, either of his assailants; that both Lilly and Shumate were larger and stronger men than himself, and that at the time he fired the fatal shot, Shumate was striking him in the face with his fist, and the blood from his
The judgment below refusing a new trial on the ground that the verdict was not supported by the evidence is also assigned as error; but as there is to be a new trial because of a misdirection to the jury, it would be improper for us to consider the evidence.
'The judgment below will be reversed, and the defendant awarded a new trial.
Reversed.
Dissenting Opinion
(dissenting in part) :
I fully concur in the reversal of the judgment and granting of a new trial. I have no fault to find with the opinion, except in so far as it says the presumption, alluded to in the second point of the syllabus, is one of law and founded upon,
As to whether these presumptions are of law or fact, Mr. Bishop says the question cannot be regarded as settled. 2 Bish. New Crim. Law, section 673a et seq. The conclusions vary throughout the several jurisdictions and even in the same jurisdiction. In State v. Dodds, 54 W. Va. 289, 297, Judge WarrbN Miller said, with the concurrence of the Court, the presumption of specific intent to take life is one of fact.
I think the instruction, embodying the rule in question, was properly given. Its propriety depends upon the existence of evidence, tending to prove a malicious killing, not upon the definition or origin of the rule in any degree. Both at common law and under the statute, the infliction of death is evidence of malice. This evidence, though it may not be controlling, nor sufficient, under the circumstances of the case, to sustain a verdict of guilty, will always justify the giving of such an instruction. State v. Taylor, 57 W. Va. 228. In that ease we said: “Whether these presumptions be regarded as matters of law or fact cannot affect the question under consideration. Even if presumptions of fact only, they are important elements of evidence which can be affirmatively and authoritively brought to the attention-of the jury only by the action of the court. How else can they be proved? What document other than a law book will prove them? What witness can swear to them? Must they be brought into the case by the mental operations and knowledge of the jurors only, unaided by rules and principles born of centuries ■ of experience? Most assuredly not. Obviously the court may properly direct attention to them. Viewed in this light, the court says no more than that they are evidence, an assertion which is indisputably true. The jury are neither told that they prove the whole case against the prisoner nor that they are entitled to any fixed amopnt of weight as against other evidence. What, amount of evidence to the contrary will overcome such presumption is always left to the jury, but there must be someN We may add here that, in giving such an instruction, the court merely advises the jury of inferences which they may draw, and are in duty bound to draw, from the evidence be
Dissenting Opinion
(dissenting):
I have often expressed my opposition to the reversal of fair trials for grave crimes upon technical grounds or overdrawn refinements. I cannot agree to reverse because of instruction No. 2. Its meaning is, that if, one assault another with a deadly weapon, the fact of being so armed tells the party assaulted that he is in danger of death or great bodily harm, and he may kill his assailant; but that if the party is not so armed such danger does not appear to be imminent, and he would not be justifiable in killing his assailant, unless it manifestly appears that he is in such danger. It does not say that the person assaulted may not kill if his assailant is not so armed. It simply says that from the mere act of striking with the fist the party cannot justify the killing. If this were not so any man when struck by another with the fist could justify killing. Such a doctrine would place a small premium on human life. This instruction does tell the jury that even if the party have no weapon, but is striking only with the fist, the party assailed may take the life of his assailant, provided it does appear from the violence of the assault that he was in great danger of death or bodily injury. This instruction concedes the right to the prisoner, if the assault, though only with the fist, was so violent as manifestly to disclose an intent to do great bodily harm, to take the life of his assailant. Did not that jury understand from this instruction that though the deceased was not armed, yet that the prisoner had tne right to kill him if the assault was so violent as to manifest an intent to inflict upon the prisoner death or great bodily harm? Is not that the plain meaning of the instruction? The instruction did not mislead the jury. It is not reasonable to assume that it did when it is so readily susceptible of a meaning.