74 W. Va. 741 | W. Va. | 1914
Having been adjudged guilty and sentenced to confinement in the penitentiary for murder in the second degree, upon evidence wholly circumstantial, Willard Gunnoe seeks reversal upon writ of error.
By the first bill of exceptions, defendant invites consideration of a ruling upon the refusal of the prosecuting attorney to permit his counsel to interview Ocie Mullins, a sister of the deceased, and who then was, and until after the indictment and conviction of Gunnoe remained, in jail, jointly accused with defendant of the same offense. This assignment, however, we need not discuss; because subsequently, and before the trial, counsel did interview her, and, although summoned, she was not examined as a witness upon the trial.
By another assignment, defendant challenges the right of a witness examined as an expert, who performed or assisted in performing an autopsy upon the body of deceased, to state an opinion as to the nature, character and cause of a bruise or scratch on defendant’s face, which he examined or observed on that occasion, and to say it was a fresh break of the skin, that it had in it fresh blood, and that in his opinion the break in the skin was caused by a finger nail. Other witnesses observed the same marks, and expressed the same opinion without objection or exception. We think it entirely competent for a physician, the practice of whose profession necessitates frequent examinations of wounds upon human bodies, to ex
By another assignment, accused complains of two instructions given on behalf of the state. In substance, the first explains what is meant by reasonable doubt, saying “beyond all reasonable doubt” does not mean “beyond all possible doubt” and that “what jurors believe as men they should believe as jurors”. The defect suggested is that the instruction makes no reference to the .evidence, contrary to the holding in Britton v. Oil Co., 81 S. E. (W. Va.) 525. The syllabus cited says: “Instructions requiring the jury to pass upon issues of fact should not omit reference to the evidence”. But the instruction under review here does not purport to advise upon any such issue. It merely defines reasonable doubt — the open sesame to which resort is frequently had to acquit persons charged with crime. In part, it accords with an instruction approved in State v. Ice, 34 W. Va. 244, the difference being that the latter adds, “but proof to a moral certainty rather than to an absolute certainty”, instead of the concluding phrase of the state’s instruction given in this case. .But, substantially as given, the instruction has been approved in State v. Bickle, 53 W. Va. 599; as has also been the second instruction in State v. Sheppard, 49 W. Va. 585, the two, with but an immaterial change, being in the same language.
Defendant, by his first instruction, refused, challenges the sufficiency of the evidence, discussion of which is for the present reserved. Except 1, 2 and 6, the trial court gave all the instructions asked by defendant. Because of the sub
This brings us to a consideration of the further objection arising out of the argument for the state and for the accused, each of whom sought to impress the jury with inferences to be drawn from the failure of the other to call Ocie Mullins as a witness. Although summoned, neither of them ventured to examine her. No doubt, she could have furnished information valuable or fatal" to the success of the prosecution — which we do not know. And again counsel for the state said: ‘ ‘ There are witnesses now in the court room for the defense who saw Willard G-unnoe the day before” the crime, not put on the stand to show, as Gunnoe contends, that the scratch alluded to was on his face the day before his wife’s death. The statute, §19, eh. 152, Code, upon which the objection is based, changing the common law rule as to the privilege of the accused to testify in his own behalf, provides only that failure to make such request shall not create any impression against him, nor shall any reference be made to nor comment upon such failure by any one during the progress of the trial in the hearing of the jury. It is apparent that no such remarks or comments were made; and we can not perceive in what respect, if any, defendant was prejudiced by the argument of counsel. For comments of the character first indicated have been held either proper, or at least not so improper as to require a reversal. State v. Ice, supra; State v. Parker, 172 Mo. 192; Richardson v. State, 42 Tex. Or. 311. Comment on the failure of accused to explain incriminating circumstances, as his flight from the state, or that he had not accounted for his whereabouts at the time of the homicide, is not objectionable as referring to failuer of accused to testify. State v. Smokalem, 37 Wash. 91;
What, then, were the facts upon which the jury based its verdict, the court its judgment upon defendant’s motion for a new trial? Willard Gunnoe was on March 16, 1914, a dairyman, supplying milk to his customers in Kanawha City. With him lived his wife, Nora, the deceased, Ocie Mullins, her sister, and Tolbert Hundley, defendant’s employee. Between six and seven o’clock in the morning of that day, being Monday, Nora Gunnoe was found dead, her body prostrate on the floor, face upward and partially covered with an apron. Without doubt, she was alive after the evening meal late on the preceding Sunday evening. Hundley says he saw her then; the exact time he does not fix, though requested to state it as nearly as he could. Nor can there be any reasonable doubt she was also alive on the morning of the 16th; because she was dressed and, as clearly and indisputably appears, had been somewhere and at some time out of the house that morning, for her shoes and clothing had on them fresh mud and were wet. Where accused and Ocie Mullins were that morning prior to the discovery of the body, no proof
While the three physicians who conducted the autopsy say' the body was cold when they first examined it between ten and eleven in morning, they were unwilling to say, and declared the inability of the profession to say definitely, what length of time within the first six hours life may have first become extinct. The witnesses, including the physicians, who saw the body and examined the room where it lay, agree in saying there were visible indications of a struggle; that there were scratches on the face and neck, and bruises at several places on the body; that a ring she wore “had cut clear into her finger and cut a notch in the skin clear across the back of the finger”; that “there was a scratch on her throat, bruises oh her shoulder, and on each hip, a little skinned place on the •hand”, and blood in her ear; fresh mud in and about the kitchen, on the stove near which the body lay, on the legs of the kitchen cabinet, and “splotches of mud all over her shirt and underwear and stockings”, and covering and extending to the top of the shoes, which were also wet, as was also the floor about the body, .but not elsewhere, as if recently partially scrubbed or mopped. A partially filled bottle of carbolic acid was found, with the label torn off, on top of the ldtchen cabinet, near which the body lay, but not within reach from the floor, the cabinet being from sixty to sixty-six inches in height, and a towel having the odor of carbolic acid was hanging in the milk house. There were imprints of foot marks on the floor, in and about the stove and cabinet, caused by shoes carrying fresh mud. A loose apron partially covered the face, and an over-turned pan containing potatoes and potato parings stood under the stove.
Moreover, and as if to create the impression of death by suicide, expert testimony, when fairly considered, tends strongly to indicate, and indeed we deem it sufficient to warrant the belief, that some human instrumentality other than
As a further circumstance, it is shown by the testimony of the witness Jarrett that, before day-light on the morning the dead body was discovered, the accused and Ocie Mullins by their joint conduct manifested unusual activity about the house, going from rear to front, outside and inside, and back again, several times. A further significant fact was the apparent indifference of the accused to his wife’s death, as indicated by his deliberate attitude, his solicitude about the care of the milk, his incoherent remarks to different persons, and the absence of any attempt on his part to ascertain or to explain to the various witnesses the cause or manner of the injuries inflicted upon her resulting in her death — potent circumstances which the jury could rightly consider in determining the guilt or innocence of the accused.
• 'Thus was clearly established the corpus delicti; and, so far as they expressed any opinion, the experts agree in saying that the death of Mrs. Gunnoe was caused by violence, and that the violence was in their opinion by strangulation.
Upon the evidence thus, we think, fairly summarized, the jury returned its verdict, the intermediate court overruled defendant’s motion for a new trial, and the circuit court, upon application thereto, refused his petition for writ of error.
"Who but Willard Gunnoe could, under this proof, have caused the death of his wife? As noted, the record is void of proof tending to raise any suspicion of the presence of any person near the'Gunnoe home with any motive or purpose to serve or with any opportunity to commit the crime, unless it was Ocie Mullins, sister of the deceased. That she did it, or could have done it unassisted, is incredible, under the circumstances of this case. If she was an accomplice of Gun-noe, as probably she was,^ her participation would not of course excuse him. While counsel for Gunnoe do not in argument, or otherwise, suggest any other person as probably guilty, it is incredible that any person other than accused could have successfully caused the death without the knowledge of the husband and sister, both of whom were within thirty feet of' the scene of the crime if it occurred in the kitchen. The door of the kitchen was open, according to Hundley and Jarrett, and clearly visible to both of them. Besides, there is some evidence even tending to sustain the theory that an earlier assault occurred that morning in the barn yard. Witnesses say there were fresh foot and knee prints in the mud indicative of a struggle there. Though not essential to establish guilt of the accused, that theory finds colorable support, in view of the jealousy on the part of Mrs. Gunnoe, elsewhere noted, of the intimacy she seems to have thought existed between her husband and her sister, proof whereof she may have sought to obtain by concealing herself in the barn, and there, being discovered or finding her suspicions fully warranted, exposing both of them, resulting in the assaults, first in the bam yard, then in the house. While, as we say, ignoring this theory, because without it we would still deem the evidence sufficient to warrant conviction, still the proof referred to was before the jury as one of the facts to .be considered by it.
With the corpus delicti established beyond doubt, and the proof of circumstances forcefully pointing toward the accused
Generally speaking, touching the proof, we may say that, in our view, it was sufficient to lead the jury to the conclusion-, as it evidently did, that the accused was the real assailant; and that the jury could not, without ignoring the evidence, reach any other conclusion, unless, knowing the witnesses and observing their demeanor, they were unwilling
It was, therefore, for the jury, composed, as it no doubt was, of reasonable men, duly impressed with the gravity, importance and responsibility of their situation, to say, as they have said, whether, if they believed this evidence, the defendant was the efficient actor in the commission of the offense charged against him; and, if they believed him guilty, as they evidently did, “to a moral certainty and beyond reasonable '•doubt”, their verdict must be sustained, unless we believe it to be clearly wrong. We do not so find it. The jury and the trial judge, who saw and probably knew the witnesses and heard them testify, and the judge of the circuit court who read and considered their testimony upon petition of the writ of error, deemed the evidence sufficient for conviction' — -an opinion in which we do not hesitate to concur.
We therefore affirm the judgment.
Affirmed.