State v. Hamric

Virginia West State Hamric June

Bonnie (No. 12525) 1966. July 15, Decided 27, 1966. April Submitted dissenting. Browning, Judge, Savage, Bippetoe, Goshorn, MacCorlde é D. J. Savage, plaintiff Karr, David B. for in error. Attorney Bobertson,

C. Donald General, Leo Cat- Attorney sonis, Assistant for General, defendant error. Judge:

Bebey, The defendant, Bonnie Hamric, June was indicted grand jury of the Circuit of Court Jackson January on 1965 term Virginia, County, at the West E. Win- degree Glenn charge murder of first of Septem- on defendant shot was Winters ters. September 1964 as 20, he died on 7, 1964, ber was gunshot The defendant wounds. result degree petit murder of second a convicted overruled January trial court The 1965. 18, on 15, on March verdict and aside the motion to set in the confinement the defendant sentenced 1965, Virginia a term for for Women Prison State West application Upon eighteen years. to this five to from granted supersedeas on was a writ of error and Court judgment of the Circuit 1965 to the 1, November County 1965. March Court of Jackson night September defendant 7, 1964, theOn sitting home at in a “den” in her South small Virginia, County, Ripley, West Jackson Street young watching were children television. Her two The floor of the house. room on the second in a bed watching television in which the defendant was room only measuring The 9 x feet. small, was rather 10% dining a door from the to the room was entrance in the room. one window room and there was lock- not be indicated the window could The evidence appeared to be blind on the window ed. Venetian looking room at it from the door closed when up blind which if one stood close to Venetian but apparently out of the window tilted she could see lights degree. burning in the to a limited Street were vicinity shooting. of the home at time of the about 9

The defendant testified that o’clock she at the could hear the window heard noises window and frightened being raised. She stated she became receiving there?” no out, called “Who’s answer go away again or I will said, there, “Who shoot.” got shotgun, then chil- The defendant called her to come downstairs and left her home with the drеn went her children and across the street to the home of using telephone purpose for the her mother to call telephone husband as the in her house had been her When she arrived at her mother’s home disconnected. get them she called office and asked sheriff’s deputy with her husband sheriff touch who was immediately. Her have him come home ar- husband city soon after rived this call about the same time the accompanied police arrived. She returned to her home by her mother who made an examination of the out- side of house where the to the den window opened located. The window was found several inches. opened mother Her closed the later window but it at request of the defendant in her order that husband see it. could There nois evidence in this case that the again window was ever closed after it been re- had opened by the mother on this occasion. The defend- husband ant’s remained at home for about one-half during got twelve-gauge shotgun hour which time he and showed the defendant how load it. He then deputy left to resume his duties as a sheriff. The shotgun defendant testified that she later loaded the police but herself the state she told them testified that it was left loaded her husband and that she did not know how to load it. At the trial she was gun either unable to break down refused to put break it down. After the children had been back again watching to bed the defendant resumed televi- shotgun sion with the either across arms of the nearby. chair or p.m.,

The defendant stated that about 11:30 while watching she was still she television, observed or draperies moving heard Venetian blind and again being slowly heard the window raised and could see the television antenna lead-in on wires the window moving. sill The defendant testified she became extremely frightened and was afraid someone trying possibly bodily was injury to break her into home to do robbery,

to her or her children or to commit a standing and that she arose from her chair and at the gun door roоm held the ato level even with her hip window. in the direction of the and fired left draperies charge through shotgun and Vene- went partly through the window tian blind and continued through top partly of the bottom at the sash alignment just glass of the hole above the sash. The through drapery, indicated that blind and window three to four or the window was raised an estimated Although five inches at the fired. time the shot was supposed the defendant did not call out to a intruder shotgun through firing on this occasion before she ran door called window, stated she to the for her mother who from her arrived home across street at the that scene soon thereafter. testified She firing told her mother she of her reason for the shot requested anyone her to look outside and see if Although had been hit. mother made an examina- tion of the area outside of the house near the window anyone she did not see but soon afterwards told her neighbor, according neighbor, next door that the defendant had shot Glenn Winters and that an ambulance had been called him. mother denied she had said that there was an ambulance called city police Winters and stated that told her it was Winters who was shot. The defendant at remained except period her home for a short of time when she crossed the street to her mother’s home and called again to the sheriff’s for office her husband. Her shooting husband arrived soon after the well as as city police police. and the state The officers stated upon arriving they that at the scene first went to the back of the house, then to where the was, ambulance and came back to the front where the defendant told them they she had shot “him” and asked what would talking do to her. city The defendant denied police making this statement to them and said, specifying to whom she made the remark, gun she had shot the “happen and asked what would investigation now.” An made the officers at the shooting glass scene of the disclosed that wood and ground were on the for a distance of about three through the -windowwhere the shot went feet outside there no or foot marks in the hut vicinity blood yard on the window,

or outside the be- adjoining an tween the defendant’s house and house. steps on trailer in Blood was found which at lot on Glenn Winters lived the hack of the which adjoining telephone house was located and on the lying open page trailer book in the which at where the number for a funeral home was listed which get had called an Winters ambulance himself. The defendant’s home was the second house from right angle the corner where a ran narrow street at a Street, with on South the back end of defendant’s lot, which ran a considerable distance backward, was utility building. located a barn and to the defendant’s home The house next two-story

awas house located occupied by family by on the corner and a the name of Van Winkle. This house was owned the de- occupied by ceased Glenn Winters and had been him former his wife before their divorce March, upon 1964. The lot which the Winkle Yan house was located extended back for a considerable distance like the defendant’s lot and had a concrete block garage garage on it. The area between the and the planted grass Yan Winkle home was level and the deceased lived in a trailer which was located be- tween the Yan Winkle house and the concrete block garage. There was no obstruction between the trailer in which the deceased lived and the back of the Yan Winkle home. The window of the television room in the defendant’s house from which the shot fired was approximately opposite carport was at the rear of the Van Winkle home.

Between the Van Winkle home and the defendant’s hedge running home was a from front to rear which apparently dividing awas line between the two lots. hedge height The varied in from 4 around to 5 feet hedge or more. The was 10 located feet from the de- fendant’s home and feet 7 from inches the Yan a side Winkle home had The Yan home. Winkle porch porch on the had and the defendant’s home home had a one- of it. The back defendant’s front story kitchen and bathroom. shotgun charge struck the deceased from the

The major portion body, upper portion in the left of his being of the chest and in the area left the center area. the collarbone the abdominal Some between charge shotgun pellets were left arm. The found his body not close to- entered the which deceased’s gether. pellets and four them were scattered eventually lodged in heart caused his area which right pellets chest death. of the entered the Some part parallel nipple inner with the and went into the right pellets A chest. few of the entered right lung penetrated some neck and both the left and depth of several some However, inches. pellets body slightly entered the and three of picked were them embalming out the mortician while he was testimony

him. The medical indicated body the shot entered the of the deceased almost di- rectly although from the front, one doctor could definitely up state that arm was the deceased’s charge or down when the him, hit another doctor positively testified arms were at the down During time he was struck. trial the state at- tempted to show witnesses who were familiar with shotguns shotgun pellets spread how would when attempted fired and on each occasion ob- this was jection ground of the defendant sustained on the qualified experts. that the witnesses had not as After the deceased back was shot he went to get trailer, it, entered and a funeral called home to an ambulance. The owner of the funeral Edison home, Parsons, answered the call which he re- stated was p.m. ceived between 11:35 11:40 and The ambulance night extremely driver testified that it was warm that sleeping nothing that he had been but his opinion shorts. He was of the that he at the arrived receiving a call, the four after scene about minutes one-way running possible by quick trip a made Ms be be scene found Winters arrived at the street. When parked which were crouched between two vehicles house, and when he called the rear of the Van Winkle he he asked him out, to came where him, Winters standing when Parsons stated that Winters was pointed shot. carport the at the back of the Van

toward “Right yard.” my there in Winkle house and said, that asked him Parsons testified he also who shot replied him did not know. and Winters that he While get attempting am- Parsons was to Winters into the “Edison, don’t let me said, bulance Winters die.” way fifteen On the to some minutes after Charleston, they Ripley left had Parsons stated Winters going told “It’s not I’m him, it; worth I don’t believe to make it.” Prior to to what as admission, its the evidence said Parsons at before, time,

Winters to the placed and after he was jected ob- the ambulance' was being counsel for im- as defendant proper hearing evidence and a was held out of presence jury. It was contention of the prosecution exception that was admissible an as hearsay being part gestae rule as res dying objection as a declaration. The defendant’s overruled was allowed to consider evidence. The ambulance driver delivered Winters emergency Hospi- room of Charleston General operated tal in Charleston where he was on chest surgeon pellets who removed most but un- able to remove the four in the heart area. Parsons and Harl Winters, brother of the testified deceased, glass body there was no wood or found on the of the deceased. The doctors also testified that there glass body. was no wood found on his operation immediately After the first after hospital, deceased entered the which was on morn- ing September developed breathing 8th, he dif- ficulty surgery, as a result of the chest tra- and a cheostomy performed September was on 9tb. Winters appeared improve September to until 13th at which began time the doctor testified Winters to have breathing heart and he difficulties and told Win- ters that he had taken a turn for the worse and might anything that he die if there was he say say wanted to he had better The doctor it. then took the tube from his throat, covered the incision made the trachea and asked who shot him Winters replied, and he the woman or female. The doctor then standing asked him where he was when he was shot replied hedge and he that he was on of the his side present fence. Two brothers of the were deceased when these statements were made. The doctor stated on completely cross-examination that he was not that Winters would die and convinced not tell him did that he was surely going to die but that he believed Winters thought might gravity he die and realized the of his situation. After these statements were made Winters’ improved September condition until about 15th at which time he became confused and thrashed about separation bed. This caused a of the wounds which operation September necessitated another on 17th to correct the situation, after which condition wors- September ened and he died on 20, 1965. September

The evidence as to on Winter’s statement objected by 13th was counsel for the defendant, holding hearing after court, on the matter out presence jury, admitted such evidence for jury’s dying consideration aas declaration. apparent in an effort state, to establish motive shooting, for the asked the former deceased’s ifwife she had had a conversation with the defendant con- cerning relationship her sexual with the deceased, immediately objected by which was counsel for the objection by defendant. The was sustained the court later and the instructed not to consider the any question by manner. A motion for a mistrial question because of this the defendant overruled the state Another introduced the court. witness Marjorie that she be- the name of Roub testified night engaged before he was came deceased the the deceased at shot. that she had visited She stated had seen the de- trailer on several his fendant occasions looking her window toward the trailer out back testimony in evidence over the which was admitted objection of the defendant. The defendant admitted of her kitchen that she looked out the back window working. Although evidence lacks she was such while probative thereof does not con- value, the admission stitute error. examination if was asked on cross

The defendant January, Snyder in at the she had told one Verna Ripley Village in that Glenn Winters was Restaurant go to hell.” Her and that “He can ££son-of-a-bitch” refer inasmuch as she stated with answer was evasive part question, “I I first don’t know ence to the language”, and with reference the second used that part that she said that did not remember it but had she go people if to hell that she said it a lot of could referring maybe to him. she was Snyder a heart had The record indicates Verna testify night and when before she was to attack the the trial court it instructed was announced to questions asked defend- not to consider a “son-of-a- if she had called the deceased ant, is, go to hell. The that he could bitch” and had said any if there had been trouble also asked defendant was which was ruled deceased, husband and between her by written statement was the court. No inadmissible investigation during the defendant made ever opportunity although given an was she this case make one. case a motion was made the trial of the

Prior to change which accom- for a of venue the defendant County. panied affidavits of citizens of Jackson nine quite nature, in were similar affidavits get effect that the in defendant a fair trial conld not County, apparently Jackson and were based on stories published newspapers County in with re- Jackson gard denying to the crime. an The state filed answer allegations for a trial contained the motion new and filed five affidavits therewith to effect that although there had been comment by considerable about gradually the homicide it had out died time newspaper case was set for trial. The stories which were filed connection with the motion were almost testimony identical to the defendant’s at the trial and they quotations contained from the deceased’s brother story that if Glenn Winters survived, his would be dif- ferent from that of the defendant, but there was no story papers statement toas what the have would story In been. other words, one side of printed newspapers in the to and this was favorable prosecution. the defendant rather than to the grounds urged of One the in motion for the a new ap- trial was based on evidence. It after-discovered pears arguments that after final the and before the jury attorney returned its verdict, the for the defend- trooper ant was informed a state that the state police glass had some evidence that wood and were clothing on the found worn the deceased at the time attorney he was shot, the defendant’s that claimed knowledge any up he had no such evidence existed although time, to that had been contained in a state police report. attorney Defendant’s contended that he misled the had been evidence and statements of the glass or state to the effect that there was no wood on clothing person of the deceased. Affidavits of Corporal Langley Barber and of the Lieutenant State support for a filed of the motion trial Police new after-discovered evidence were to the effect based on they examined deceased’s shirt which was appeared time he was shot and found what worn at the particles upon an and that fine wood examination to be particles glass small of shirt two were found particle, mixed with blood a small wood and that they prosecuting had so advised both then attor- ney attorney employed by and the who had been family prosecute of the deceased to the case. These particles microscopic were found under examination in laboratory, presence and a notation of their was report. police in a contained trial state The court over- ground ruled the motion for trial a new on the of after- timely discovered evidence because it was' re- quested attorney inasmuch as the defense had knowl- edge completed of such evidence before the trial jury and before the returned Also, its verdict. the in- regard particles formation with to the could have been police report ascertained from the state at the same time and obtained granted inspect to the motion was grand jury minutes of the and furnish defendant reports copies autopsy reports with of all respect medical doctors with to the nature of the wounds and cause of death. assignments upon

Fifteen error relied are fox- They following- reversal. can be in the consolidated manner : grant

(1) refusing Court erred the de- change refusing (2) fendant a venue; direct a refusing verdict for the and in defendant set aside grant verdict and to the defendant a contrary new trial because the same law ground evidence and also on the of after-discovered admitting (3) improper (4) evidence; evidence; improper part attorney there was representing conduct on the (5) and,

the the court in state; erred re- give fusing 12 9, instructions and 20, to offered the defendant. assignment up error take

The first of we will is that change dealing of the motion a venue. with The newspaper and with articles filed said mo- affidavits publicity given to not indicate that tion do this case inflammatory it or that would to tend influence against returning a in determinations fair its

15 prove just to on the defendant verdict. The burden is change existence of and the for a of venue the need granting prejudice of such trial. The at the time of the the trial court. in of motion rests the sound discretion v. 912; 113 State Powers, 737, 91 S.E. v. W.Va. State Wooldridge, v. 899; 40 State 448, 129 S.E.2d W.Va. 774; Pietranton, 84 State 444, 140 W.Va. S.E.2d Point of Loveless, 273. 875, 140 W.Va. 87 S.E.2d clearly Wooldridge law syllabus states the case in the lang- following change respect in the ‍​‌‌​​​​​​​​​‌​‌​​‌‌‌‌​​​​‌‌‌​​​​‌​​​‌​​‌​​‌​‌​‌‌‍venue with to of change in a uage: criminal a of venue “To warrant showing good therefor, cause of there must he a case, upon defendant, of which rests the burden change any a of person to is entitled who, case, such good exist at the time aforesaid must The cause venue. change application Whether, made. of venue is for a change showing will or- venue be a of made, on court; the trial of in the sound discretion dered, rests ruling disturbed, unless not he thereon will and its clearly appears has been aforesaid

that the discretion widespread publicity mere existence of abused.” require change a of to sufficient itself, not, is (C.C.A. States, F.2d 532 Bearden v. United venue. 1962). appear abused its dis- trial court that the It does change grant in the of venue in its refusal to cretion the defendant The affidavits filed at bar. case newspaper articles and the were in conflict the state though given support wide even motion, filed prejudicial to publicity, not be considered would did not err trial court Therefore, defendant. change grant in this case.

refusing venue assignment group errors is the The second for the a verdict court to direct trial refusal the verdict of the aside to set the refusal defendant, jury trial because it grant a new the defendant and to contrary refusal evidence, the law and ground of after-discovered verdict on aside set together. discussed These will be evidence.

16

The contention that the trial court should have di rected a verdict for the defendant without merit. evidence this case is uncontradicted that the de discharged shotgun through fendant a the window of her home and as a result thereof killed G-lennWinters. deadly In such cases law is clear where a weapon presumption is used a homicide there is a of degree second murder and the defendant has the bur proving justified of den that it was and the state has proving killing the burden of that such was deliberate premeditated raising degree and it to first murder, jury questions. all of which are A.L.R.2d, 96 1436; Welch, State v. 36 690, W.Va. 15 419; S.E. State v. Hertzog, appears 55 74, W.Va. 46 792. Then, too, S.E. from the record that no for motion was made a directed during verdict the trial of this Therefore, case. assignment interposed of can error not be at this time Zitzelsberger, and was waived. State 129 229, W.Va. Boggs, 39 835; S.E.2d State v. 603, W.Va. 42 S.E.2d 1. justified

The trial court was also under the facts of refusing the ease at bar in aside the set verdict jury grant the defendant a new on trial ground contrary that the verdict was the law and shooting evidence. The relative evidence which clearly presents resulted in the a death Glenn Winters question determination. It that on shows night September sitting 7, the defendant watching ain small room in her home It television. was extremely night although, according an hot to defend- testimony, ant’s the window in the small room in which watching she was television was closed covered drapes. blind and She testified that Yenetian about evening being in the 9 o’clock she heard the window slowly away, go raised and called out, there, “Who is Ior will shoot.” did not shoot but stated that She she gun got a and went over to her mother’s home across got premises look her mother to around the street, lights her the house called husband. Street outside vicinity burning home and her were mother found no one when in- outside the house she spected deputy it. Her at husband, sheriff, remained period his home for a of about one-half at hour, which gave shotgun time he the defendant a and either showed her how it to load it or loaded himself. Her mother, while at the house, defendant’s closed the win- again dow the television room hut the window raised request at the of the defendant so that her husband position could see the in a when window raised he came to the house. There no that the evidence window was ever lowered after the first instancе when it was left by according raised the mother. However, the testi- mony of the about 11:30 the win- defendant, she heard being again dow raised and observed movements of Although the antenna wire in the window. she no saw outcry one and made no as she done on the first had grabbed shotgun nearby occasion she the which was through open, making and fired the window which was drapes a small hole in the and the bottom sash the pellets charge window. Scattered from the struck pellets pene- deceased four arm, chest and left trating merely being superficial area, the heart some picked and later out There was no the undertaker. footprints but blood or outside the window blood was telephone found near the trailer on the deceased’s city policeman A book he used to call the ambulance. testified that after the shooting him the defendant told they that “him” what would she had shot and asked making this do to her. The defendant denied statement gun asked what but that she had will said shot happen went to her mother’s now. After the defendant episode mother, occurred, house with her an and talked by neighbor, the mother told as testified to which neighbor later that the defendant had some time at an ambulance was the scene. shot the deceased and her the defend- that an officer told Her mother stated effect, later denied she, ant shot Winters at the There was an scene. said ambulance she through window could see out the that one evidence standing posi- ain certain which the shot was fired jury tion. The all could consider of this evidence in arriving at verdict. In its the fact that defendant fired gun warning although say the ing without she denied jury

she shot the deceased, there is evidence weigh to shooting. and consider that she did see whom she was jury

If the believed from the evidence ad during trial duced which no case, this doubt shotgun charge did, the defendant fired through the window and struck the deceased with knowledge attempting fact and he was not through enter the defendant’s house the window and yard shooting inwas his own at time, justified, deceased was neither excusable nor which the In so found its verdict. such fact, evidence returning even warrant would of a verdict of first degree murder. v. 20 Cain, 679; State W.Va. State v. Hertzog, Tucker, 52 420, 44 v. 427; W.Va. S.E. State supra; McCauley, 401, State v. 130 43 W.Va. S.E.2d Dean, v. 134 454; State W. 58 257, Va. S.E.2d 860. jury right part The had the to infer malice on the the defendant because the homicide was committed with deadly weapon. Bowles, State v. 117 217, W.Va. 185 205; Jones, S.E. State v. 496, 128 37 S.E.2d 103. W.Va. It true the is defendant on self-defense relied and was required not to retreat she because was her own home. if However, even she believed that she was in danger great bodily harm and was attempting protect apparent danger, herself from she assumed the doing. Board, risk 194 so v. De 119 W.Va. 396, State 41 Toler, 575, v. 129 349; S.E. State W. Va. S.E.2d 850. assignment category

Another error is the refusal of the trial court to set aside the verdict on ground assign- This of after-discovered evidence. attorney for ment is on information the based de- policeman from a after the final fendant obtained state jury deliberating arguments while the was out verdict returned. No motion before the case but after the trial court until had was made to the

19 made to set aside returned its verdict and the motion the verdict. evidence that The state had introduced body glass cloth there was no found on the or or wood ing laboratory microscopic exam of the A deceased. wearing ination at of the shirt the deceased was which police. time he was shot made the state discovery glass pulverized particles of or fine particles and small a micro of wood was obtained scopic laboratory. examination in It was contained police report in a state indicates and the evidence special pros prosecuting attorney the then and the ecutor duty of this fact. It is were informed and advised attorney special regular prosecuting or the prosecuting attorney prosecute the offensе duty charged it also their which an is but is accused impartial an a fair and see that accused is afforded Attorney, trial. 4 M.J., Commonwealth’s State’s Hively, 237, 136 862; v. 103 S.E. State §4; State W.Va. prosecuting If a Moose, v. 715. 476, 158 W.Va. S.E. intentionally attorney attorney special prosecuting or which material evidence withholds information as to guilt he the accused innocence of would affect the prosecuting reprehensible but be would error. Code constitute reversible Canon would Moose, xxi; State Ethics, Professional W.Va. supra. have obtained could the defendant However, copy by requesting the trial this information before containing report police this information. of the state requesting either have been done This could report copy attorney prosecuting of the a to furnish along moving information, for such the court or granted upon the court which information other with grand and request, the minutes of the such as prosecuting the called to be the witnesses lists of reports. autopsy too, attorney Then, medical and and some that the deceased indicated information be away he was shot when the window from distance only laboratory that revealed examination cause fine present. Had he glass particles were and wood of glass chunks of and wood window close been 20

considerable size which fell about three feet from it body would no doubt have been imbedded his with charge appear from the shot. It would therefore produce that this evidence was not such as would an opposite a result at second trial on the and it merits appear would that the effect it could have would be to discredit witnesses who that testified there was glass clothing no or wood found on of the deceased. necessary laboratory microscopic Since it was for a presence examination to be made to ascertain glass pieces perhaps wood, would not have eye. been visible to the naked ground A new trial on or after-discovered newly very granted discovered evidence is seldom special. the circumstances must be unusual or v. State Spradley, 140 156; 314, W.Va. S.E.2d State Far- ley, 143 W.Va. 265. S.E.2d applicable granting

The law new trial on ground clearly of after-discovered evidence is syllabus single supra, Farley, stated in the of State v. “ which ‘A reads as follows: new trial will be granted ground newly-discovered on the evidence following (1) unless the case comes within the rules: appear The evidence must been have discovered trial, since the from wit- and, the affidavit new ness, what such or be, evidence will its absence satisfac- factorily explained. (2) appear It must from facts plaintiff diligent stated in his affidavit ascertaining securing evidence, and that the diligence new evidence is such due would not have (3) secured it before the verdict. must Such evidence merely material, cumulative; be new and and not is additional cumulative evidence evidence same point. (4) kind to the same The evidence must such be ought produce opposite an at a result second as trial generally (5) And the new trial on the merits. will be object of the new refused when the sole evidence is to impeach opposite on witness side.’ discredit

21 syllabus, Horton, 38 W.Va. 727.” Halstead v. Point 1, Spradley, 314. syllabus, 140 W. Va. Point State v. 2, readily for a new trial tbat tbe motion It can be seen ground newly under tbe evidence on tbe discovered require- tbe not meet case does circumstances tbis grounds. tbe before It was discovered ments on several bave been should returned and motion verdict was promptly information could time. Tbe made at tbat diligence be- tbe use of due bave been ascertained during of tbe tbe nature trial and because of fore or tbe questionable, materiality very and tbe tbe evidence result. The affected tbe evidence would not bave appear to discredit to be use of said evidence would impeach questionable value but it was of witnesses requirements any as tbat. If of tbe essential even for quoted syllabus point are not satis- above set out in tbe complied factorily will never be trial with, a new supra. Farley, granted grounds. on such State assignment group relates to tbe next of errors Tbe improper improper conduct and evidence admission of attorney representing part tbe state. on tbe of tbe re- it was tbat It of tbe is tbe contention defendant made tbe de- error to introduce statements versible be arrived tbe time driver at ceased to tbe ambulance during tbe deceased at tbe scene and talked with hospital way tbe on tbe tbe time tbe deceased was be was tbe made a doctor while statements hospital. on tbe scene arrived ambulance driver Tbe called Winters after be was minutes within a few standing be when where be was be asked Winters edge pointed toward tbe deceased was shot and said, borne and carport tbe Winkle behind Van tbe ’’ ‘‘ appear my yard. Right would Tbis evidence there gestae. res See tbe doctrine of under to be admissible 241. S.E.2d Nelson, 145 W.Va. Lawrence v. placing the deceased driver ambulance tbe When slumped don’t said, “Edison, be in tbe ambulance way tbe deceased to Charleston tbeOn let me die.” going said, “I don’t believe I am to make I it, don’t ’’ believe it is worth it. With these foundations would appear that the statement as to where he was shot qualify dying would aas 1 declaration. See Wharton’s seq. Criminal Evidence, §297 et dying The second occasion of a declaration was when hospital the deceased was the in Charleston and had taken a turn for the worse and the doctor told him he might anything not survive and if asked him he had he say. wished to The tube from his was removed throat opening finger the and doctor covered the his with and the deceased amade statement that a woman or female him shot and that he the was on side of fence or hedge part at the time he was shot. The the state- ment that a woman shot him is immaterial beсause question there is no in this case but that the defendant the fired shot that killed Winters. regard

The trial court heard all of the evidence with hearing to each of these out of the statements of the jury and ruled that such statements were admissible jury then and was allowed to hear the evidence. regard These statements with to where the deceased was located at the time he was shot are admissible as gestae dying declarations, res or or both, first dying instance and as in the 1 declarations second. seq.; Evidence, §297 Wharton’s Criminal Meek, et State v. 324, 208; Graham, 107 W.Va. 148 State v. S.E. 94 S.E. 699. 67, W.Va. 117 regard

The heard court the evidence with dying hearing jury declarations out of the of the and admissibility allowing jury on the ruled consider before in accordance the “orthodox” it, rule, with Virginia. supra; Meek, to West State v. adhered supra. Graham, v. rule is the same with re- State gard Vance, 146 W. to confessions. State Va. 925, Fortner, decided 124 State v. this S.E.2d point In the Fortner case first 7,1966. Court June question syllabus with this reads of the deals as mandatory duty court, a trial follows: “It is the requested the evidence and whether to hear not, presence of determine the first out of instance, jury, written confes- an oral or voluntariness admitting person prior the same sion an accused proce- evidence, into and the failure to observe dure constitutes reversible error.”

Notwithstanding the fact that trial court com- plied admissibility covering with the rules regard dying con- evidence with declarations number fessions the defendant offered instruction given stating which that the the court judge weight, credibility admissiblity of in this weight such evidence. The rule adhered to orthodox jury state that with the is the is concerned credibility required is of such evidence. The court admissibility to such evidence is determine its before jury, in the ever to the all of which was done submitted instant case. that it was

It is now the contention the defendant of give 21 offered said error to instruction number jury due to the fact that the verdict defendant contain a statement that not, instruction, did аfter such jury the that the evidence was admissible. had found For defendant relies on the recent United States this, Supreme Denno, 378 368, case of v. U.S. Court Jackson Supreme 1 1774, A.L.R.3rd, 908, 12 L.Ed.2d 84 Court authority The Denno case for contention. 1205,as such a five to four de- a confession was which dealt with many opinions it is difficult to cision with written holding many analyze for ascertain the exact and to to state that it is it not difficult However, reasons. is proposition applicable in the case raised for the not presented not the court did here. In the Denno case admissibility allowed the evidence but of on the rule jury In the case at bar final decision. to have the to the final as admis- decision court made the trial sibility inadvertently in effect evidence and of such admissibility jury all also, to consider allowed 24 although

of which defendant; was favorable to the permitted the admissibility should not have been consider can not

of such evidence the defendant advantage respons any take error which was for she The National Bank v. Hansb ible. First Peterstown arger, 418, 129 W.Va. 822. See State S.E.2d Meek, Clark, 64 402 and State v. W.Va. S.E. supra. alleged improper part the at- conduct on the

torney representing the matter in- the state relates to newly inasmuch as volved discovered evidence attorney that evidence there was had introduced glass clothing no or wood on the of the deceased but laboratory report charged that he knew glass on there and wood the de- showed clothing. heretofore cov- ceased’s This matter has been although questionable ered and would discussed and improper other not constitute reversible error. The attorney alleged by the conduct to have been done repeated attempts improper have state was spread regard introduced evidence with shot during case, the trial of the a matter which was dis- in connection with the evidence does cussed constitute error. that the

It is also the contentiоn of the defendant right attorney representing the state who had opening open a fair the clos- and close did not make ing arguments 22 of the in violation of Code Canon 128 W. xxviii. Ethics, Professional Va. Ethics, Code of closing arguments carefully have examined We defendant and behalf of both the state and the made on The error in connection therewith. find no reversible attorney representing could have made a the state always argument opening should be done fuller which not to mislead criminal and civil cases order both supported by any points material or withhold support plaint- the state’s or and relied on evidence closing argument position. the able However, iff’s

25 anticipated attorney made tbe all defendant’s argument closing argument contained made attorney representing the state. objections

The trial court to much sustained complains other evidence defendant was not made a of or its admission point petition appeal. of error in the for questions Several relative to whether defendant had telephone why it had been disconnected and for what reason were admitted into their evidence and point appeal admission was made a of error on on the ground they probative had no value and created suspicion jury. in the minds of the In view the testi- mony by traveling defendant about across the street to telephone, logical ques- use her mother’s these would be although produced tions, and the answers no worth- questions while information we but that the cannot see proper themselves were ones. objections jury

The were not but the sustained question was instructed not to consider the asked the divorced wife of the relative to the deceased sexual relations between the defendant and the deceased. This apparently attempt ‍​‌‌​​​​​​​​​‌​‌​​‌‌‌‌​​​​‌‌‌​​​​‌​​​‌​​‌​​‌​‌​‌‌‍evidence an to establish motive necessary 1 which is not in a case of this kind. Whar- Law Homi- Procedure, §64; M.J., ton’s Criminal cidе, §83. questions on cross-exam- asked the defendant called the deceased

ination as to whether or not she had “go could hell” were a “son-of-a-bitch” and said he after it was ex- manner, in an evasive answered plained to whom these the trial court that the witness presence they were were made or whose statements had been taken to a heart attack and had suffered made testify, night hospital the trial she was to before such evidence. not to consider instructed court questions that the of the defendant the contention It is reversible error and amounted to witnesses asked these Corbin, W.Va. on the case State she relies authority for such contention. The 179, as 186 S.E. authority In contention. such case Corbin 26 questions

Corbin case not certain were asked but they were allowed to be answered and the court over- objections jury ruled to such evidence and allowed tlie objections questions to consider it. The in the jury case before us were sustained instructed not to consider them. In the Corbin case witnesses were testimony by used and their allowed to be considered jury building which amounted to an inference on an objection inference. The to such evidence should have been sustained and the not to instructed consider, as was done in the instant case.

It is the contention of the defendant that the trial giving by court erred instruction number 5 offered refusing the state and instruction number 9 offered by the defendant. Both of in- these instructions are structions on reasonable doubt and effect amounted thing to the same and it has been held that where there embodying are two instructions in form and effect legal principle amounting thing same to the same give it is not reversible error to one and refuse the Rice, other. State v. 83 98 432. Then, W.Va. S.E. too, the instruction 5 defendant’s number and number given 8 which were also dealt with reasonable doubt. by It was also contended the defendant the trial refusing give court erred defendant’s instructions 12 and 20. Instruction 12 offered the defendant is adequately covered instruction 11 which better fits the evidence in the at case bar. These instructions dealt weight credibility given with the ant’s be defend- testimony, and instruction contained state- by any ment to the effect that there was no evidence testimony witness to contradict the of the defendant on any testimony material fact. The of the defendant was on material contradicted facts several the state’s Therefore, witnesses. it was not error to refuse de- instruction number 12. fendant’s Defendant’s instruc- by the court tion 20 which was refused related to evi- theory dence in connection with the defendant weight given evidence, and the to be such but in- adequtely by struction was in- covered defendant’s which, by given struction number 18 the court and give the refusal to instruction 20 therefore number did not constitute error.

Although majority opin- the of the of the Court were exceptions timely ion that the bills of had been ob- pointed tained, should be final of out that the order sentencing pen- March 15, 1965, the defendant to the itentiary only suspended judgment execution the of by stay period ninety a of execution thereof for a of days and did not extend the time within which the de- exception signed fendant’s of tendered, bills could be merely and certified. The stated that the de- order * * * ‘‘ stay having for a of fendant moved Court perfect execution in of her order to such sentence appeal stay of be doth order that a execution Court days granted ninety period a of unto defendant for get perfect appeal of in her bills order to her * * * exception signed by ”. of The bills Court, exceptions on in lieu thereof were filed or certificates sixty days after final more than 12, 1965, June January adjournment term order and after the of the exception in there- of A certificate lieu court. bill of judge signed him of must be tendered to the sixty days adjournment of the term in within sixty days within final order was entered or which the if entered vaca- the date the order is entered from tion unless the time is specifically for the extended exception obtaining in lieu or certificate of such bill of It 56-6-36. has been Code, 56-6-35 and Code, thereof. stay many of execution that a times this Court held period extension of time time and the a certain exception or certificates bills of which to obtain within separate pro- and distinct filed are thereof to be lieu not ex- of time for one does the extension cedures Varner, 131 v. the other. State time to obtain tend the specifically It stated 171. was 48 S.E.2d 459, W.Va. Workman, 141 91 482, W.Va. v. case of State stay page that a of execution 487, at 329,

S.E.2d 28 equivalent an extension judgment is not

sentence or exception. trial An order of a a bill of of time obtain stay a execution of a motion for court based on giving “in judgment, as a reason which is sustained appeal”, may perfect will not petitioner its order that extending such time within which as be construed litigant exception, signing may a bill secure the evidence. State a certificate of thereof, in lieu or, Company, al., 130 W.Va. et and Oil v. 755, Gas Consumers’ jurisdictional matter and 45 923. This is S.E.2d any though point manner the not raised even motion. on its own defect take notice of such court should 330. S.E.2d Hall, W.Va. Cro okshank This recent cases of comparatively in the matter has been discussed Montgomery, Montgomery 147 W.Va. Rose, 575, 449, 128 S.E.2d 480 and Lester v. W.Va. Montgomery case, 80. In which was de 130 cided the S.E.2d repeatedly in been was stated: “It has necessary in held this Court cases where it is exception appeal obtain a bill of in an to this Court that stay suspension judgment of the execution of a does not extend the time in which to obtain a bill of exception.” The in statements the Rose case were to effect, same with in authorities connection there stay with cited wherein it was stated that a of execu judgment tion of the final does not extend the time in exception prepare which obtain a bill of or to a case appeal. proper extending Por a order in the time exception signed which to have a bill of tendered and Hogg’s Pleading the trial court see 4th and Forms, signing exceptions If Ed., §670. of bills of or certifi timely in cates of evidence lieu thereof were not done assignments this could not consider most of the Court appeal on in of error relied of this case. However, notwithstanding carefully situation, this we have re assignments all of the of error and do viewed not find any of them error, that constitute reversible as indi opinion. cated this judgment stated of herein,

For the reasons County of Jackson is affirmed. Circuit Court

Affirmed. dissenting:

Bhownihg, Judge, I respect dissent. It is with I and deference that dis- agree with the other four members of the Court in this my opinion case, but in the evidence falls far short sustaining guilty a verdict of of murder the second degree light and such verdict, viewed of other occurring errors in the course and conduct of the trial, though majority even has determined them not to brings constitute reversible error, neverthless, me to the firm conclusion that the defendant has been denied the fair trial to which she was entitled. pertinent comparatively facts case are

simple, physical facts and much state’s evi- confirming completely dence the statements made immediately the defendant after the deceased shot testimony as well young as her at the A trial. mother sleeping with two children in the house whose husband, deputy away duty sheriff, was on discovered some person attempting by way to enter her house of a win- retreating possible leaving and, dow as far as without blindly shotgun the room, fired a at the window, the piercing drape, shot portion a Venetian blind, and a portion pane glass. the sash as well a as The evidence shows without contradiction that this was during evening night the second time attempted someone had to enter the defendant’s home by way opinion, of that window. In his which has been part made a in case, record this the able trial ‘‘ judge found: never She saw the deceased before she gun. fired the She did not know who or where he was.

She heard a noise at if the window as someone was raising gun, stepped it. Then she loaded the in door, and fired. He could have retreated mean- physical time.” Reference facts of the case ad- begun that deceased, mits no alternative if he had step a had not retreated more than retreat, or two, also, and edge that the defendant could have had knowl- no supposed retreat. The state’s evidence powder drape that there were no burns on revealed shotgun powder order for the blast leave no gun necessarily .marks the muzzle of the must have been at least three feet distance therefrom. The barrel n ofthe gun thirty length, was inches in thus the defend- ant could not have stood closer than five and one-half feet from the window at the time the shot was fired. It is uncontradicted that the Venetian blind was tilted person so that a in the room could not out see unless he very or she stood close to the window and that the shot pierced drape, additionally covering the lined at least a portion of the window, so that it would have been im- possible for the defendant to know the whereabouts of person at whom she fired or whether, after the noise at the window and the vibration of the television any attempt antenna, the intruder had desisted from at entry. through comparison

It is also in evidence, drape, Venetian blind and window sash, the direc- slight angle tion of the shot was at a downward. The height ground forty-six of the window sill from the align drape inches. To holes and blind with that of the sash, the sash must have been raised three making approxi- or four inches the course of the shot mately fifty ground. inches above the The deceased approximately eight sixty-eight five feet inches, mainly tall inches, and the shot struck him in line with nipple, approximately the left fourteen inches from the top body fifty-four of his at a head or level on his path inches. The downward of the shot is obvious from appar- the window sash evidence and thus becomes only rudimentary knowledge ent, with of the laws of physics, slight that thе deceased was crouch in proximity prop- close to the window, on defendant’s erty, at the time the shot If was fired. he had been standing erect at the window the shot would have cen- standing some four inches lower ifor, tered erect at the hedge, property, approximately still on defendant’s seven lower or near inches the belt line. If, as the state jury apparently contended and believed, the do-

31 beyond hedge my yard” ceased at the time “in shooting necessarily of the have struck the shot would proof him below the further of the down- waist. As pellet ward found shot, course of the not one twenty- side of the frame a mere house, Van Winkle through seven which and one-half feet from the window the shot under that, was fired. The state’s contention blindly the above fired circumstances, the defendant striking his out of the window deceased who was on premises, attempting own “not to enter and who was syllabus points her majority opinion, of the house” as assumed in and 7 utterly then foundation without necessarily and, as deceased was on de- follows, the property at the time fendant’s at or near her window shooting, there is no evidence to contradict her attempting, gave statement that the deceased was or grounds attempt- her reasonable to that he was believe ing, purpose to enter her home some malevolent at require the time she the shot. It fired does not the cita- authority jury tion that, to note while the determines credibility weight given of witnesses and the to be testimony to their and is entitled to draw reasonable proved from the in a infer- ease, inferences facts such jury must be ences reasonable and the should not be permitted ignore physical totally to facts inconsistent compelled with such inferences and this Court is not accept apparently by because found true, as so approval trial court, with the facts which in the things nature not have occurred the manner could and under the circumstances narrаted. jurisdiction

The rule is well established castle, elsewhere that a man’s home is his that he right protect has a it and those within from intru- person may repel A sion or attack. force with force in person, property against habitation, defense of his or manifestly one who intends endeavors felony, violence or surprise to commit a known such as murder, robbery, burglary, rape, etc. In arson, these he is cases obligated may pursue adversary retreat but

until he has secured himself from all danger. People Lewis, v. 117 Cal. 186, 48 P. 1088, 59 Am. 167; St. Rep. Sullivan State, v. 102 Ala. 15 135, 264, So. 48 Am. St. Rep. 22; Carroll v. State, 23 Ala. 58 Am. 28, 282; Dec. People Hecker, v. 109 Cal. 42 30 451, 307, P. LRA 403; Powell State, v. 101 9,Ga. 29 309, S.E. 65 Am. Rep. St. 277; State v. Thompson, 9 Iowa Am. 188, 342; 74 Dec. State v. Robertson, 50 La. 92, 9, Ann. 23 69 So. Am. St. Rep. 393; State v. Bonofiglio, 67 239, NJL 52 A. 54 712, A. 91 99, Am. St. Rep. 423; State, Erwin v. 29 Ohio St. 186, 23 Am. Rep. 733; 18 ALR 2 LRA 1290; 53. (NS) Eegardless of any general to retreat theory as far as practicable before one can justify his turning upon as sailant and life in taking self-defense, the law imposes no duty to retreat upon who, one free from fault on a bringing difficulty, is attacked at or in his own State, Hutcherson dwelling or home. v. 165 16, Ala. 50 1027, 138 So. Am. St. Rep. 17; Turner, v. State 95 Utah 79 P. 129, 46. (2d) Upon the that a theory man’s house is his castle, and that he a right protect has it and those within it from attack, intrusion or the rule is universal practically that when a person attacked his own dwelling he at and turn may bay stand on and kill his assailant if apparently this is necessary to save own life himself from protect great bodily Frizzelle, harm. State v. 243 49, N.C. 89 S.E. 2d 725, State, Hill v. 52 ALR 1455; 11, 2d 194 Ala. 69 941, So. State, Karr v. 2 ALR 14 509; 100 Ala. 46 4, 851, So. State, Lee v. Am. 92 Ala. 9 Rep. 17; 15, 407, St. So. State, Rep. 17; Brinkley v. 25 Am. 89 Ala. 834, St. So. State, Elder v. 648, 18 Am. 69 Ark. 65 22, Rep. 87; St. Lewis, Rep. 220; People v. Am. 938, SW 86 St. 117 Cal. Bennett, State v. 167; 48 P. 59 Am. 186, 1088, Rep. St. 997; Estep v. 105 5 Ann. 713, 324, 128 Iowa NW Cas. Com., Rep, 260; Young 4 Am. 39, 820, 86 SW 9 St. Ky. 2 LRA State, v. 867, 104 346, (NS) 66; 74 Neb. NW Tomlins, v. 240, 496, 213 NY 107 NE Ann. Cas. People Brooks, 60 v. 144, 79 SE 17 State 916; 518, SC 1916C 15 Ann. Rep. 836, 49; LRA Am. Cas. 483, 128 St. (NS) Patterson, State 12 Am. State v. Rep. 200; 45 308, Vt.

33 v. (2d) Cushing, Turner, 95 Utah. 129, 79 46; P. v. State Rep. 14 45 Wash. 527, 145, P. 53 883; Am. St. Palmer v. Wyo. Rep.

State, 9 40, 59 P. 910; 87 Am. St. 793, 67 (NS) LRA 541; 2 (NS) LRA 45 LRA 71; 72; Am. 74 Rep. St. Rep. 93 727; Am. St. 261; 999; 5 Ann. Cas. 15 Ann. 51; Cas. Ann. Cas. 918. 1916C Furthermore, safely fact that retreat can he effected does not render necessary dwelling for a man assaulted in his re Brinkley treat therefrom. State, v. 89 Ala. 34, 22, 8 So. Rep, Estep

18 Ky. Am. St. 87; v. 439, Com. 86 SW Rep. Wyo. St. Am. Palmer 260; State, 40, 59 P. Rep. 793, 87 Am. St. 910. legislature lay

The of this stаte not has seen fit to regard down a rule with to this matter and therefore as provides English constitution this state com binding upon mon law is still effect and this Court. judicial England, The decisions the colonies and the separation uninterrupted nn- states since the in an deviating principle person line have adhered to this —a only may may not take life defense, own hut do so persons in defense of other where the circumstances may relationship warrant. He do so where the of wife, parent, or child exists. The rule the same is as to the right of a wife to defend her husband or her child.

Many say right of the it cases is of such person protect legal their it loved ones but is their Bailey People, duty v. to do so. 54 Colo. 130 337, P. (NS) LRA Ann. 1914A

832; 145, 1142; 45 Cas. Dukes State, 557, 370; v. 11 Ind. 71 Am. Dec. Utterback v. Ky. Rep. 49

Com., 105 SW 88 Am. 723, 479, 328; St. Ky. Campbell 11 21 Com., 88 402, 290, v. SW Am. St. Estep Ky. Rep. Com., 86 4 820, v. SW 9 Am. 348; 39, St. Rep. Ky. Rep. Com., v. 24 L. 260; 2493, Morrison 74 529; Francis, LRA State v. 152 277, 67 SC 149 17, SW Douglas, State v. 115 1133; 70 ALR 348, 483, SC SE ALR 656; Cook, State v. 78 SC 59 648, 253, 101 8 SE (NS) Rep. LRA 125 Am. St. 1013, 788, 15 13 862, SE State, v. 102 1051; 33, Foster Tenn. 49 SW Ann. Cas. Mayhew Rep.

747, 855; State, Am. v. 73 St. 65 Tex. 34 144 Wood Rep. 290, 671;

Crim. 39 LRA 229, SW (NS) State, v. 27, 557, 128 Ala. 29 Am. Rep. 71; So. 86 St. Turner, v. State 246 598, 313, Mo. 152 Ann. SW Cas. State, Johnson v. 1914B 451; 420, 125 Tenn. 143 SW State, Snell v. 1134, Ann. 29 261; Cas. 1913C Tex. App. State, Ross v. 25 236, 15 722, Am. 10 Rep. 723; SW St. Rep. 643; People Forte, v. Tex. 38 269 App. 455, Am. 505, 110 47, 924; Ill. NE LRA 1916B 13 Ann. Cas. 1058. rule as to homicide in modern defense hab an itation if an on a at dwelling assault made such circum forcible are under tempted entry stances a reasonable as to create apprehension commit a felony is the of the assailant or to design inflict on the inmates a which re personal injury may harm, great bodily sult the loss life or into execution is design that the will he carried danger occupant the lawful present, imminent even lawfully entry, dwelling may prevent v. Alberty United life of intruder. taking of the States, Carroll 864; 40 Ct. 499, 1051, 16 162 L. ed. S. US Perkins, v. State, State v. 282; Ala. 58 Am. Dec. 28, 23 Wilson v. 73; LRA 1915A 91 A. 360, 265, 88 Conn. State, Powell v. 654; 11 17 LRA 234, 556, 30 Fla. So. Fos State, Rep. 277; 65 Am. 299, 309, 101 Ga. SE St. LRA 45 v. 258 NE Shepherd, ter 164, 101 (NS) Ill. Com., 86 572; Estep Ky. 39, 1914B 167, Ann. Cas. State, Williams v. Rep. 260; Am. 820, 9 St. SW State, v. Neb. 104 705; Young 346, 74 Miss. 90 So. 851, State, 61 Neb. Thompson v. 66; 2 LRA (NS) 867, NW v. Bailey, State Rep. 453; 62, 85 87 Am. St. 210, NW v. 608, 162 77 Gray, State NC 529; 198 P. 145, NM27 State, 166 Tenn. v. 71; Hudgens LRA 833, (NS) 45 SE State, 58 Tex. v. 153; Newman Crim. 60 231, (2d) SW v. Pat State 718; 21 Ann. ‍​‌‌​​​​​​​​​‌​‌​​‌‌‌‌​​​​‌‌‌​​​​‌​​​‌​​‌​​‌​‌​‌‌‍Cas. 126 578, Rep. 443; SW State, v. 200; Palmer Am. 9 terson, 12 308, Rep. 45 Vt. v. 910. State Sor Rep. 87 Am. St. 793, P. 59 Wyo. 40, 1477, 34 ALR is direct P. rentino, Wyo. 129, 420, 224 31 hears another that where one holds in point ly habitation in the into his way force his attempting an out or alarm give call bound to not he is night

35 escape imputation order to an if of malice lie kills the preventing entry. intruder the forced In State v.

Gray, (NS) 162 608, NC 45 77 SE LRA it was 833, 71, a held that householder an who is awakened intruder kicking threatening at the door and to enter the dwell ing justified, upon breaking will he the intruder’s a killing window to effect an entrance, if the him, ground householder believes, or has reasonable to be necessary prevent lieve, that act his harm to him family, entry self or his or the violent of his home. require danger

Furthermore, the laiv does not that the peril real, householder is, be that the actual ly exist to entitle the householder to resist even to taking State, Carroll v. 23 Ala. 28, 58 Am. Dec. of life. State

282; Perkins, v. 360, 88 Conn. 91 A. 265, LRA Thompson 73; 1915A State, v. 61 210, Neb. 62, 85 NW Rep. Gray, 87 Am. 453; St. v. State 162 NC 608, 77 SE (NS) 45 LRA 833, 71; State, Newman v. 58 Tex. Crim.

Rep. 443, 126 21 Ann. 578, SW Cas. 718. The law does require of a defendant a who commits homicide un by wrongful der the mental excitement induced assault upon circumspection his habitation the same and cool judgment might and deliberate as otherwise be the People, case. Patten 314, 100 18 Mich. Am. Dec. 173. justify

Even under which circumstances do not the act committing preventing if done an un homicide, entry dwelling, lawful into a no there is case in this country except instant one which has not held that degree that circumstance reduces crime manslaughter. also: 25 ALR 32 523, See s. ALR 1514, 34 ALR 1488.

This until the Court, case, decision has been aligned authority. the cited In Manns, with State v. E. 613, the defendant was W. Va. S. tried guilty hanged. found and sentenced to be

murder, The neighbor, showed his medical doctor, evidence day rampage throughout on a had been the kill gun firing finally firing ing, random at his shot family he and home where into defendant’s having were weapon, defendant secured a dinner. went 36

to rampageous the comer of his house his and killed neighbor. At that moment neither the nor defendant family danger, his was in immediate hut this had Court difficulty reversing finding no that conviction and right exactly that the defendant a had to do what he dangerous weapon deadly did. There, as a here, and threatening was to kill used one who was a manner neighbor’s family. among a things, The said, other Court opinion, “Every right

in the man has family, self-defense of himself and and when attacked in exercising he home, his is not bound flee to therefrom before right, smarting strong prov-

that but under may ocation he set and law, exceed bounds knowingly greater yet necessary, use force he than and guilty degree not first would be of murder in the but jury a lesser offense.” The further said that the Court properly in may such a case be instructed so that should easily giving a not “be misled into verdict con- ’’ trary to law. 41 Clark, 204, In S. E. State W. Va. Dempsey and found one defendant killed John degree. guilty af This of murder of the first Court majority, by a but that three to one firmed conviction conclusively principles laid down therein show get a fair in the instant case did the defendant Briefly, in the case: the facts Clark these were trial. neighboring farms on lived on The deceased and Clark Dempsey owning Mingo County, his Pigeon Creek they being of the one the owner wife farm and Clark’s appar animosity them, between on. There lived necessary religion. growing ently It was out portion Dempsey the Clark land a small cross put going direction. Clark in certain from his home trespass up not to the deceased notified a barrier riding his mule to came the deceased thereon; person, the place and another Clark and found vow each occurred, altercation witness; a verbal other get weapon; went go and Clark ing his home Dempsey shotgun an ax. returned with got Demp- naturally benefit of not have the did sey’s testimony, but Clark and the other witness said Dempsey using profane lang- that uage came toward Clark threatening great bodily him Al- with harm. though the deceased still his mule, was astride Clark shot and killed him. The conviction was affirmed syllabus point this Court. This is the fourth of that case: “In cases of not assault, made with the intent to great bodily person kill or do or harm, when the as- dwelling-house, justi- saulted is not his he cannot fiably having kill his assailant without first retreated ” (Italics supplied.) ‘to the wall.’ State’s Instruction they No. 5 the told that if from believed the evi- Dempsey trespass dence that was about to commit a against property the of the defendant or his wife and attempting prevent trespass, inif, to kill- ing they guilty resulted, should find him of murder.

Although the Court criticized the instruction it not held to be reversible error but the Court said this about objection it: “The jury to this that it failed to inform is, trespass, although justify that the insufficient to killing, proper provocation to be considered as might manslaughter. which reduce the offense to . . . trespass against property ‘A bare of another, dwelling-house, provocation is not sufficient to war- ” deadly weapon. (Italics sup- rant . . .’ the use of a plied.) The Court also said: “Under such circum- possession gun neither the at the stances, time question place prisoner’s having gone nor and after it and ground

brought there, would have afforded premeditated kill- inference he stating ing after further that a And, of deceased.” killing retreat the wall who man must before one is merely trespassing upon property, the Court said: only exception a man is to this is where assaulted “The dwelling kill in There, intent to his own house. without but he cannot kill his ad- retreat, not run or he need necessary versary to save his own life, unless it is (Italics supplied.) felony.” prevent This obser- other Poffenbarger pertinent Judge vation fallacy picking out of former case one instruction giving may init another the facts be dis- where “Nothing similar. He said: than that is better settled every upon instruction must be founded the evidence in the case and in view of the circumstances of the proposition may An case. applicable abstract law which be may wholly inapplicable case one be another reason of the difference evidence quoted from and circumstances.” He Wharton on “Presumptions to this effect: Evidence, § 1237, unique pe- fact, words, other relate to conditions, incapable reproduction culiar to each of exact case, presumption applicable in other of fact cases; and inapplicable, in to one the same force case, therefore, is presumption intensity, any other But a to case. categories to cases, of law relates to whole of each one uniformly equally applicable, of which is developed anticipation trial.” on Even facts upon case, Dent, President, the facts of that dis- People Payne, quoting approval from sented, with following language: “The of the owner 8 Cal. property right possession a of the same has to in the necessary prevent a forcible force to use such trespass; as is trespasser goes with a the intent and where necessary felony, if a to commit and with the means accomplish the owner of the intended, end the property may repel the extent of force to force aggressor.” killing further that “The He said the undisputed question presented by evidence was provocation slight mutual combat or or one of (Italics trespass malice a mere force.” free from opinion supplied.) thus: “If concluded He and wilful conduct of the malicious unlawful, forcible, jury presented true its had been deceased they a legal light found verdict for not have would thereby degree. prisoner first in the murder brought of the deceased for the death to suffer made just indifference and lawless reckless on rights may of human law, be the end This of others. ’’ justice. it is not but giving opinion that the firm State’s am of I Instruction No. 12 was reversible error. That instruc- tion is as follows: The Court further instructs the ‘‘ you beyond that if believe a reasonable doubt that

Bonnie June Hamric inflicted mortal wound with deadly weapon previous possession upon in her G-len any, upon very slight provocation, Winters, without prima then pre- this is facie, deliberate wilful, killing upon meditated and throws Bonnie June Ham- necessity proving extenuating ric the circumstances proves and unless Bonnie June Hamric such extenuat- ing appear cirсumstances or the circumstances from guilty the case made the State, she is of murder degree.” “provoke” of the first The word connotes umbrage, harassment, offense, etc. In inflamation, my opinion phrase “slight provocation” or no inappropriate and reversible error as used given by state’s instruction No. 12 trial court to ‘‘ jury. opinion In the Manns it was stated: Jurors look to the court for law, advice as to the and when the gives they right court them an have instruction, rely stating on it as the law of the case. inWhat slight provocation they law is deemed do not know, language they and if the court uses the above take it granted provocation, any if at all, was only slight give in law, otherwise the court would not Finally, Judge such an instruction.” Dent “A said: abiding family law citizen have concealed would sought peace, an and the aid of officer of the if he average found. . . . But an man could be with an temperament average given would have blow for blow, eye eye, tooth for for shot, tooth, shot for life prisoner than the went farther the law life. Whether doing right justifies him in he has the to an have properly jury peers, impartial of his instructed as to say, right and he has the to have his the law to defense (Italics by proper presented supplied.) instructions.” Sauls, 124 E. 184, 670, 97 W. Va. S. the In State theory propounded this instruction that murder automatically being upon killing comes into the of one person deadly by firing weapon a another

40

totally completely my rejected opinion, and, has never been since that case. This is resurrected eighth point syllabus the “An of the in the Sauls case: may jury malice, instruction that the infer the intent kill, to the of and the from unlawful use willfulness deadly weapon previously a omits obtained, which any mention of of of the circumstances the case which might, jurors, in the minds such infer rebut pertinent part ences, erroneous.” of is This is syllabus point “. . an instruction seven that case: . charges

in the murder, trial of one for which presumed to that a homicide be murder is referring degree, particular to second without case is abstract and too circumstances comprehensive.” instant Best,

In 113 559, State v. 91 W. Va. E. that an instruction to 919, S. this Court held might inferred, “malice without refer effect that be to rebut ence to the facts and circumstances calculated misleading. such of malice”, inference is Whitt, 268, 742, In E. State v. 96 W. Va. S. syllabus point which, the third Court states says: “Where the facts and material, insofar as is they a are homicide case such circumstances may jurors rebut mere inference in the minds part an abstract accused, of malice on the deliberation, to the effect that wilfulness instruction deadly may of a from use and malice be inferred any weapon; to mention of the various and which omits tending er inference, rebut such circumstances roneous.” Incidentally, instruction was taken Welch, 690, E. 36 W. Va. S. from State v. Judge severely in that Brannon criticized

had been opinion In error. held to be reversible case but not very appropriately said: case the in the Court Whitt have reference the facts should “An instruction For this reason it is as case on trial. in the shown bodily practice lift from another general bad rule applicable probably to the facts an instruction case case where use it in a the facts there shown totally Instruction No. different.” State’s are shown simply told the if Bonnie June Hamric deadly weapon killed Glenn Winters with a without any upon very slight provocation prima that it was facie a premeditated killing wilful, deliberate and prove unless Bonnie June Hamric could extenuat- ing circumstances or such were shown the state guilty she degree. of murder of the first It the law of this state that a woman, where her home young daughters, alone with her two who retreats to blindly the wall of that home then fires at an prima intruder guilty who is at the window is facie very appropriately of murder. As was said in the Whitt say case, “It is sufficient to that the defendant according is entitled to a trial to the rules of law.” Although, pointed physical as heretofore out, facts show that the deceased must have been on de- property shooting, fendant’s proximity at the time of the import-

to the window becomes of crucial ance to further corroborate the defendant’s recital of the circumstances. The state’s evidence shows that glass particles and wood from the window did not yard extend into the more than three feet. The existence or non-existence of such debris on the cloth- ing of the deceased thus vital and, becomes while I agree majority with the the defendant did not proper showing upon make a for a trial new ground firmly evidence, discovered I am after suppression convinced that the deliberate evidence appear clothing that such debris did on the deceased was reversible error. In the affidavits of Cpl. Langley depart- Lt. R. J. Barber and R. F. of public safety, experts ment of in their fields in the criminal identification bureau, both affirm officers possession that the state had such information its began. at the time the trial However, state did not call these men as witnesses, but introduced other witnesses, who had no occasion to observe fact, prove contrary. my opinion, This, violated process the due clauses of the constitutions of this paragraph state and United States. Section 42 governing

2 of the Code of Professional Ethics the prosecuting attorneys primary conduct of reads: “The duty lawyer prosecution engaged, public a in is of not sup- justice to The convict, hut that is done. to see pression capable secreting or the witnesses of facts of highly establishing the innocence of the- accused is of reprehensible.” (Italics supplied.) This statement is Attorneys, Prosecuting in 42 Am. Jur., contained prosecutions, “In criminal it has been said Sec. 20: duty attorneys prosecuting to it is as much the of any person deprived see that a trial not of of on is statutory rights prose- his or as it is to constitutional charged. may cute the with he be him for crime which prosecu- public The that a however, demand interests, energy tion and skill. While be conducted with should prosecuting unfair ad- the vantage officer that no should see yet taken the he is not a accused,'

is of required judicial to exercise officer. Those who are judge judicial in the are the and the functions case jury. necessarily partisan public prosecutor is compelled proceed If the case. he were to with the jury, circumspection judge and as there same the criminals. Zeal an end the conviction of would be to prosecution to criminal is therefore be cases If convinced of the and not condemned. commended way, honorably guilt, an use should, he defendant’s every power At to his conviction. that he has secure prosecuting duty at- time, it is the same people torney, represents all has no who discharge duty, fairly responsibility except his to to proper and avoid violent under restraint hold himself may partiality, partisanship, which and misconduct deprive fair to which trial the defendant tend to duty to refrain it is as much his entitled; he is bring improper to about a methods calculated from every legitimate wrongful it is to use as conviction just duty bring one. It is the about means to prosecutor competent nothing evidence but to see things, jury; all and, to above he is submitted anything prejudice against guard that would should jurors, the minds of the from and tend to hinder them considering only the evidence introduced. He should by any warp never seek artifice to minds of jurors by inference or insinuations.” This a com- Attorney, ment in M.J., Commonwealth’s and State’s attorney may prosecute Section 6: “An for the state vigorously, long fairly so he as deals with the accused; partisan, but he should never become a intent on Accordingly, flagrant conviction. it is a abuse his position argument jury, refer, fairly material facts record, outside de- prosecuting attorneys therefrom. ducible For in the quasi-judicial position conduct of criminal trials a have duty а and to owe the as well as to courts the state practice procedure to observe of rules and which serve give safeguards to those tried for crime the a fair of ’’ trial. early morning September

In the of 8th, Harl Win- (who a ters, brother of deceased under that stated oath employed special prosecutor he had case, right do) as he had a to that testified he turned Trooper deceased’s shirt over at to Britton a Charles- hospital Trooper ton where deceased been taken. had Cpl. Casey, Britton turned the shirt over to who gave Cpl. Langley. Cpl. Langley thereafter to September stated an affidavit that on or after 10, “he to examined the shirt delivered him, both visually miscroscopically, and and that near the left pocket upon shirt said amidst the blood the said particles he discovered two shirt, of broken shat- piece glass, appeared a of tered to small wood and what pellet shotgun a flattened from a be shell. All of carefully these articles were saved him and are possession in the now Criminal Identification ap- also Bureau. There were peared visually about the shirt what particles appeared to fine be of what incorporated This information to be wood. was into Corporal report Casey, mailed to R. a L. written a Department Safety Ripley, of Public member of the at Virginia.” supplied information This was West di- Prosecuting

rectly special prosecutor "Virginia, Attorney County, in oral "West Jackson suggestion September 30,1964, conversation on made that by Lt. it. J. be further examined the shirt Barber. The affidavit of Lt. Barber is the effect requested to, that he examined the but not shirt was specific . examination to “. . made no scientific particles of em- determine whether there were wood merely but that he recalls shirt, bedded from appeared to examination of the that what visual shirt particles be were on shirt about fine wood apparently region had where the said G-len Winter upon his been shot. Affiant further oath states request at he was made such examination as made special prosecutor Corporal Langley but and the requested any re- never thereafter he was port findings, report.” nor he make such did subpoenaed Cpl. (Italics Langley supplied.) as was appeared opening- a day for the state and on the witness days. four The trial court trial which lasted “Corporal Langley opinion at It. its said: P. day for the trial at least one as State witness testify.” (Italics although supplied.) he Cor- did not poral Langley attor- however, called, regard proceeded prove neys with for the state exactly opposite foreign upon any the matter the shirt they they words, to true. In other of what knew be totally they offered were knew that the witnesses Briefly, ignorant they testified. of that about which they to at and what testified are the witnesses these the testi- deceased, Winters, trial. Harl brother driver, the ambulance called Parsons, that Edison fied Hospital and told General from the Charleston him happened brother He to his Glenn. went what had him hospital, directly the deceased’s shirt delivered Casey, Cpl. Trooper to who delivered it Britton, to Cpl. Langley. At that ‍​‌‌​​​​​​​​​‌​‌​​‌‌‌‌​​​​‌‌‌​​​​‌​​​‌​​‌​​‌​‌​‌‌‍time it to in turn delivered who whether it not have known was would witness this unimportant important to determine whether there or any glass on his or other substance or wood was that he did examine he testified brother's shirt but glass any in and about if it “to see there was wood glass the on there no wood or the shirt” and was attending physi- and the shirt. ambulance driver question was to the same effect. This cian testified pointedly none of of whom witnesses, asked each these Cpl. closely the shirt, while had reason to Langley examine prosecutor as the Barber, who, and Lt. prosecutor

special have testified well knew would contrary, I that' not called. consider vicious the were of error and violative the constitutional reversible especially process. rights In of due defendant, the attempted qualify the two same manner state the experts pattern of on the a shot or three witnesses as shotgun using single gauge barrel fired from twelve they qualified one-half None size seven and shot. testify, expert permitted the however, not were investigation the criminal bureau of the office of the guns, public safety department on this the of state of spread pattern, firing etc., is one of them, though present, Langley, Cpl. was not F. who, R. day’s apparently after one attendance called but by the which sub- state, excused had trial,

at the was may presumed poenaed that if he had been It be him. spread pattern the shot and used state body would have been consistent it on the deceased’s concerning where she was statement with defendant’s taking into consideration that shot, fired the when she through draperies, passed Venetian shot the small glass part win- of the sash and the shades significance, particular believe, I is the state- dow. Of Cpl. Langley’s that there one affidavit ment upon which shirt he examined. battered shot atmosphere Pointing up this which defendant precluded I believe her from tried and which placed receiving trial, a fair the state former wife question: on the asked deceased stand of the “Mrs. you have a conversation did ever with Winters, concerning Hamric, defendant, her June Bonnie ques- relationship with Glen Winters?” The sexual objected objection tion was to and sucb was sustained, prosecution but the barm bad been done. Tbe thus jury, by informed tbe fair foul, means or that at some prior shooting time to tbe Winters, Grlenn be and engaged tbe defendant were in an extramarital sexual relationship; shortly before be was shot Winters Marjorie discarded tbe defendant for one Roub; and jealousy Marjorie that because of defendant’s and tbe deceased she shot and killed tbe latter. Tbe Roub following testimony upon was elicited direct examina- Marjorie permitted tion of Roub, and tbe court tbe dеtermining to consider sucb evidence in tbe guilt or innocence of tbe defendant: you

“Q. When did first meet GrlennWinters? January “A. In of ’64.

Í C you you “Q. Would tell us tbe last time can visiting recall night trailer before tbe September 7,1964? Friday night “A. It was tbe before. you Had

“Q. ever visited tbe trailer, visited you Glenn Winters when observed Bonnie Ham- ric?

“Objection: Overruled. “A. Yes. í i

‘ ‘ you Q. Where was she located when saw her ? In her window. “A.

“Objection: Savage. Mr. Motion to strike. (Excep-

“Tbe Court: Tbe motion is refused. tion).

‘ ‘ you Q. You said her window, would tell me you what window she was when saw her?

“A. It would be tbe back window on tbe left band side.

i i

‘‘ you you standing at the time Where were Q. saw her? sitting were in the

“A. We trailer. ‘‘ you in the trailer ? Were with someone Q. ’’ I with

Í£A. was Glenn. then five six occasions This witness testified that on sitting in the trailer while she and deceased were at them. Then comes Bonnie June Hamric stared my opinion, viciously prejudicial that what, was so point that if a at mistrial should have been declared sought. permitted to witness was one -had been This testify night that he was killed she on before engaged that he married; to be Winters became Glenn engagement ring; gave allowed, an and she was her objection, up her hand and show hold over finger. ring ring engagement on her left Corbin, 179, Va. 186 S. E. In 117 W. State manslaugh voluntary of a the conviction defendant County was ter in the Circuit of Harrison Court primarily of the ad this because reversed Court objection very similar to of evidence mission over being permitted in case, difference that this relationship a between Cor- was evidence of that there police Fort, town of Nutter officer of the bin, Many Longenette, a witnesses married woman. Mrs. testified seeing couple in near the conversation perhaps oc on other house, inside house, nothing testimony although in the there was casions, relationship any A that immoral existed. to indicate Longenette home, in the occurred disturbance Long- police officer Mrs. was called as a defendant may one who also Wilson, he found there enette, questions prosecution’s inferred from the been have acquainted Long- intimately with Mrs. been to have affray place Longenette took in the an In enette. present the defendant and the one but no home with deceased the defendant hilled Wilson. The state attempted by physical hilling to show facts way conld not have occurred the Corbin said it did and attempted the state to show inference and innuendo really that Corbin hilled Wilson because his in- Longenette, previously fatuation with Mrs. who al- legedy had been on intimate terms with Wilson. The opinion, purpose Court, its said: “The evident the state was to create from that inference, the further shooting, inference that at the time of the Corbin was actuated to hill in Wilson cold blood because of jealousy. entirely his resentment and The record is testimony any improper devoid of direct of conduct part Longenette on the of Mrs. with either the deceased opinion or Corbin. ... We are this testi- mony was irrelevant and harmful. . . . The law of permit building evidence does not one of inference upon citing authority, including another inference.” decisions this Court. strategy building

This condemned one inference upon another inference to fact establish a that could proved ways not be was utilized in several in the example, instant trial. For with reference to the tele- phone having been in disconnected the Hamric home prior shooting, some time to the the defendant was length, objection, at cross-examined over about that might matter. in That itself have been harmless but closing argument jury prosecutor in his to the permitted regard to make this statement with to that subject: “You remember the evidence. He talked telephone, important. about the said it wasn’t Cer- tainly important. neighbors it is Next door for seven years, I think she said she door, lives next but hasn’t long [deceased] him talked to time, hasn’t a telephone, physical object I whenever said it awas working, couple in the but it room, she said wasn’t young telephone with looking children, woman connected, through

out the back window the Venetian hang blinds which on the bathroom window, not on six; I think GrlennWin- occasions, four but on five night Marjorie engaged on the ters and Roub become September shooting Septem- on 6 and the occurred in record ber 7.” There was no factual evidence engaged that the ever in deceased and the defendant any extramarital that the ever affair, sexual defendant that she had been alone deceased, threatened company any prior shooting, at time to the or that long prior she had even “talked to him for a time” to shooting. knowing that was unable to state evidence, establish a motive clear admissible case, violation of the rule in the Corbin laid down attempted do that insinuation and to which innuendo, is fact forbidden the law of this state —establish by building upon inference, an inference an clearly reversi- cumulative effect of evidence was such majority distinguished ble this case from error. The upon ground that such evidence Corbin case permitted go jury the Corbin case to to the questions objections whereas this case “the . . instructed not . were sustained and the them.” That not true with reference consider testimony Marjorie re- the evidence Roub or lating telephone.

Although this Court found both the trial court and upon necessary the facts of this that no motive was degree murder, a verdict of second case to sustain from which found that there was evidence this Court returning justified ver- would have been degree. The latter con- the first dict of murder “ ’ episode’ upon (a) that an occurred clusion was based shortly killing, (b) certain evidence after concluded “that she did see this Court from which episode: shooting”. First, as she whom defendant, was asked mother of the Williams, Audell upon tell Eunice if she did cross-examination from the street the Hamric who lived across Hardman, had shot deceased and “the defendant that house, majority In the at the scene.” an ambulance opinion it is stated that between this conversation place Mrs. Williams and Mrs. Hardman took “after went defendant to her mother’s housе and talked with her mother....” That statement is also incorrect. clearly This record that time after shows at no prior deceased was shot conversation be- tween Mrs. Mrs. Williams and Hardman was defendant and her mother home. The Williams knowing anything mother denied about who called deny an ambulance hut knew did not that she who had many persons vicinity, been in the shot, as did other before the place. women conversation between these two took testimony principal of one of the witnesses for the Edison that fact. state, Parsons, establishes place He that when said he arrived at the where the receiving telephone deceased four was, minutes after saying call from him shot, he had been “there flashlights referring was three over there”, around the area in the rear of the Hamric house. He was “ questions asked these and made these answers: Q. you Did ever ascertain who that was with those three flashlights? A. Yes. it? A. Ran- Q. Who was Ted dolph, Battrell, and Alva Hamric.” witness State’s Randolph “I said: was in hack of the house when the accompanied ambulance come down.”, and, course, by officer Battrell and the husband of the defendant, Randolph Alva Hamric. further testified as follows: you go Did I “Q. over to the ambulance? A. did. you right Q.. Just when did that? A. do Just after ambulance drove in. You were back Q. you directly Hamric house over went to where right.” the ambulance was? A. That is He further stated that about five minutes thereafter he went to the Hamric house where other evidence shows Mrs. standing. and the defendant were Williams Mrs. Wil- knew liams testified she who had been shot be- cause the officers told her. stated that She she saw contrary and, the ambulance to the statement con- majority opinion, tained testified as follows: ‘‘ you police state whether or not the Q. Will officers [Randolph., Hamric] and Alva went over to Battrell, they you the ambulance? A. did. Could see Yes, Q. put anyone you over at the ambulance or them did see you into the ambulance? A. No. that Q. Did know away? you it did drive A. Yes. Did later find out Q. put or who ascertain into the ambulance? A. Yes, you I From whom Q. did. did receive that informa- police.” tion? A. From the town Now this is what, in rebuttal, Eunice Hardman said to the as conversa- Following tion between her and Mrs. “Q. Williams: shotgun you seeing that do recall shot, Audell Wil- the mother Hamric? liams, Quite of Bonnie A. some- immediately (Italics supplied.) time, not that. after you saw A. Q. her, When where was she? She was coming back across the street from Bonnie Hamric’s.” Whatever was said between women the these defendant present. was not proposition might

As that the defendant have been able to see the deceased the state’s witness, Corporal Casey, questions R. L. was asked these “Q. made these answers: What about the Venetian They you A. blinds? were closed where could see you you from the couldn’t If door, Q. see out. would up blind, stand could close to the is, blind, tilted

you (Italics sup- then see out? A. sir.” Yes, plied.) Upon cross-examination as to issue the questions these witness was asked made these answers: you actually identify per- Could see and

“Q. you light? see movement sons could light; you I “A. could movement see could standing I see where was with the curtain bach. mean You where Mr.

‘‘Q. Whitehouse stand- ing? picture.

“A. Mr. Whitehouse is not you? This is “Q.

“A. sir. Yes, against right np standing the win- Then “Q. you by glancing can see down, so and like

dow out? you out. can see

“A. Yes, sir, “ you straight you right can’t across, As see Q. out? see have to look down.

“A. You very only you that from can do And “Q. distance? close you can’t see out from the door

“A. I stated apparently. there ‘‘ looking you see out in no event could And Q. horizontally straight

directly, at the out that is, you? Minds, could Venetian no, so, think sir.”

“A. I wouldn’t (Italics supplied.) impos-

Although the I have hereinabove discussed sibility being by if the defendant of the shot deceased standing directly front of the window he were yard” hedge beyond own “in his the den and that was house, front of the wall of the Winkle Yan assumption apparently only an done because there was prosecution that the deceased the trial court and the place evidence he was at that when was shot. he was when to where thе deceased this record as from the at window came shot other than in the form of a and was Edison Parsons witness alleged quotation from what the deceased shortly [Parsons] after his arrival at him have told place deceased shot. On re- where he found the special prosecutor Parsons examination direct question made this answer: “Q. was asked this happened? you when it he he was did show Where ” yard. carport there in It is not A. Corner of compute from the state’s certain distances difficult showing area an aerial view of the exhibit twenty-seven and seven- it is evidence state’s feet house to the Van Winkle tenths from Hamric from window It is evident that the distance house. carport edge the deceased where den thirty-four feet we said he was shot is at least barrel of the know from gun state’s evidence that the feet from the inside at least three the den was drapes that killed when the defendant fired the shot testimony Corporal from the deceased. We know utterly Casey, quoted impossible above, it was seen the deceased behind the defendant have “higher places” hedge most a than a head in man’s thirty-four away with the Vene- feet from the window carport pulled together. Furthermore, tian blinds “approximately opposite” of the the window was not opinion. majority The in the state’s den as stated point of the that a on the wall Van exhibits show directly opposite is at least that window Winkle house carport. twenty-five from corner of the feet majority this kind of contention of that The supported of murder have a verdict evidence would by degree the law of this in the first is warranted corner of If the had been at the state. deceased trajectory carport in view of the contended, as charge, have shots would discussed, as heretofore gone ground many harmlessly feet in front into the gun that aimed in even if the had been deceased of no evidence which it not. There is direction, premeditation, no deliberation, of and no evidence pre- can case, of malice in and neither he evidence weapon deadly proper if the the use of a sumed precedents applied are that facts, of this Court than rule “a man’s is rather is, castle”, home Suppose “slight provocation”. the defendant of or no shooting” suppose “whom she was had known change ex-paramour, fact he her would had been dwelling relating a to the invasion of house the law night? in an the dead intruder majority following contained in the statements

The opinion or the law are either inaccurate do not state

applicable page (1) facts this case: On six of hedge ‘‘ typewritten opinion this statement: height varied from four to five feet around more.” There is no evidence in this record to that Corporal Casey hedge effect. first stated that the “higher places” upon than man’s head most but being places recalled said there were some where it higher being was no than his shoulder, he five feet height. (2) page eleven inches thirteen, On re- ferring police to the affidavits of officers Barber and Langley, finding particles glass and their upon the wood deceased’s is this statement: shirt, particles microscopic “These were found under ex- laboratory, amination in the a notation of their presence police report.” was contained in the state particles Both of these officers said such could be visually observed and were observed them and that necessary microscope it was not use a to see them. (3) page majority “Although On seventeen the states: outcry she saw no one and no made as she had done on grabbed shotgun the first occasion she which was nearby through open, the window which was fired making drapes small hole in and the bottom sash (Italics supplied.) of the window.” All of the evidence of the state the exhibits before us show that the window either or was closed raised no more than three four at оr inches the time the shot was fired and that charge pierced glass the of the and sash window as drape. well as the and the Venetian blind One coun- closing argument jury, sel for the state his desperate attempt a distract the attention of the jurors regarding from the the window, evidence also regard made these untrue statements with to it. “I you said, Parsons, Mr. if extend line to which he pointing, go was where it he to, said, would toward the pointing gun. rear window out of which Bonnie was Physical away. glass Savage Mr. facts. And three feet my opening I said should have talked about it in state- expert I I am no him; ment. wasn’t as smart as shotguns. with gentlemen you shotgun, take You a know, away, feet you seven two feet that muzzle ‍​‌‌​​​​​​​​​‌​‌​​‌‌‌‌​​​​‌‌‌​​​​‌​​​‌​​‌​​‌​‌​‌‌‍stand with through you away a shot fire window, from the go only going glass you three me that tell window, actually on you no that, screen she does if believe feet, shotgun, 12-gauge seven feet muzzle window, nothing away, only away, glass from the three feet through blind. The doctors other side as went body, glass you no cuts, no on his there was no told up, you could holes, little are full of no arms wounds, you, only his under told have been as Dr. O’Dell glass probably come ricocheted. How arm had glass get big piece away, feet how did three get you through are there, how did it room, into that big. glass piece shooting is too inside, from the you glass let the barrel, then with the If break the out point drape for defend- At this counsel fall, then —.” ruling objected, court, the trial there was no ant argument in a sim- continued counsel for the state ilar vein. posing opinion without

I cannot conclude hospital query: Charleston, in a deceased was The Septem- forty Ripley, from the seventh miles from “dying After his second the 20th. until his death on ber evidence shows the state’s 13th, on the declaration” that his condition days. Why, improved dur- for a few hospitalization, days ing of the deceased’s the thirteen of the Pros- of the office of the staff did no member Casey, County, Corporal Attorney ecuting of Jackson depart- any Trooper of the other member оr Britton, County safety, public of Jackson Sheriff ment of any police deputies, officer, take other or one of his go near his or even from the deceased a statement may any man reasonable inferences room? indeed. are ominous that fact from draw majority understanding my that a is, also, It exceptions opinion had that bills of Court was considered timely case this filed and been a trial failure of court upon a course, its merits. Of exception in lieu thereof sign or a certificate a of bill statutory period, within the or an extension thereof an order of the fatal. court, is Nevertheless this matter pages in discussed the last three of the Court’s opinion this and sentence contained therein troubles notwithstanding me somewhat: “However, this situa- carefully assignments tion, we have reviewed all of any of error do not of constitute find them revers- opinion.” ible error as final indicated or- following- der, entered March 15, 1965, contained the language clearly covering quote this matter and I having last sentence thereof: “And the ex- defendant, pressed appealing her intention her of conviction and Supreme Appeals sentence to the Ya., Court of of W. having stay moved the for Court execution of perfect appeal her sentence order to a such Court stay granted doth order that of execution be unto the period ninety days per- defendant for in order to appeal get exception signed fect her and to her bills upon further, motion of the Court, defend- ant the doth further Court order the said de- fendant be admitted to bail the amount of ten thou- stay sand dollars.” That order not extends the of execution of the defendant’s sentence but it also, my opinion, clearly period ninety days extends for get exception signed by “to within which her bills of . . .” Court, . For the I reasons stated herein would reverse the judgment County Circuit Court of Jackson court a new remand the case to that trial. ex rel. L. Ralph Dotson, et

State al.

D. P. Vanmeter, et al. (No. 12586) September Prepared September 7, 1966. Submitted order (Decided, Opinion 25, 1966.) Filed October 1966.

Case Details

Case Name: State v. Hamric

Court Name: West Virginia Supreme Court

Date Published: Jul 15, 1966

Citation: 151 S.E.2d 252

Docket Number: 12525

Court Abbreviation: W. Va.