Lead Opinion
On the night of September 7, 1964, the defendant was sitting in a small “den” in her home at 224 South Street in Ripley, Jackson County, West Virginia, watching television. Her two young children were in bed in a room on the second floor of the house. The room in which the
The defendant stated that about 11:30 p.m., while she was still watching television, she observed or heard the Venetian blind and draperies moving and again heard the window being raised slowly and could see the television antenna lead-in wires on the window sill moving. The defendant testified that she became extremely frightened and was afraid that someone was trying to break into her home possibly to do bodily injury to her or her children or to commit a robbery, and that she arose from her chair and standing at the door of the room held the gun to a level even with her left hip and fired in the directiоn of the window. The shotgun charge went through the draperies and Venetian blind and continued through the window partly at the top of the bottom sash and partly through the glass just above the sash. The alignment of the hole through the drapery, blind and window indicated that the window was raised an estimated three to four or five inches at the time the shot was fired. Although the defendant did not call out to a supposed intruder on this occasion before firing the shotgun through the window, she stated she ran to the door and called for her mother who arrived from her home across the street at the scene soon thereafter. She testified that she told her mother of her reason for firing the shot and requested her to look outside and see if anyone had been hit. Although the mother made an examination of the area outside of the house near the window she did not see anyone but soon afterwards told her next door neighbor, according to this neighbor, that the defendant had shot Glenn Winters and that an ambulance had been called by him. The mother denied she had said that there was an ambulance called by Winters and stated that city police told her it was Winters who was shot. The defendant remained at her home except for a short period of time when she crossed the street to her mother’s home and called again to the sheriff’s office for her husband. Her husband arrived soon after the shooting as well as the city police and the state police. The officers stated that upon arriving at the scene they first went to the back of the house, then to where the ambulance was, and came back to the front where the defendant told them she had shot “him” and asked what they would do to her. The defendant denied talking to the city police and making this statement to them and said, not specifying to whom she made the remark, that she had shot the gun and asked what would “happen now.” An investigation made by the officers at the scene of the shooting disclosed that wood and glass were on the ground for a distance of about three feet outside the -window where the shot went through hut that there was no blood or foot marks in the vicinity or outside the window, or on the yard between the defendant’s house and an adjoining house. Blood was found on the steps of the trailer in which Glenn Winters lived at the hack of the lot on which the adjoining house was located and on the telephone book in the trailer which was lying open at the page where the number for a funeral home was listed which Winters had called to get an ambulance for himself.
The defendant’s home was the second house from the corner where a narrow street ran at a right angle with South
Between the Van Winkle home and the defendant’s home was a hedge running from front to rear which apparently was a dividing line between the two lots. The hedge varied in height from around 4 to 5 feet or more. The hedge was located 10 feet from the defendant’s home and 17 feet 7 inches from the Yan Winkle home. The Yan Winkle home had a side porch and the defendant’s home had a porch on the front of it. The back of defendant’s home had a one-story kitchen and bathroom.
The charge from the shotgun struck the deceased in the left upper portion of his body, the major portion being in the area left of the center of the chest and between the collarbone and the abdominal area. Some pellets were found in his left arm. The shotgun charge which entered the deceased’s body was not close together. The pellets were scattered and four of them lodged in the heart area which eventually caused his death. Some of the pellets entered the right chest parallel with the nipple and went into the inner part of the right chest. A few of the pellets entered the neck and some penetrated both the left and right lung to a depth of several inches. However, some of the pellets entered the body only slightly and three of them were picked out by the mortician while he was embalming him. The medical testimony indicated that the shot entered the body of the deceased almost directly from the front, and although one doctor could not definitely state that the deceased’s arm was up or down when the charge hit him, another doctor testified positively that his arms were down at the time he was struck. During the trial the state attempted to show by witnesses who were familiar with shotguns how shotgun pellets would spread when fired and on each occasion this was attempted the objection of the defendant was sustained on the ground that the witnesses had not qualified as experts.
After the deceased was shot he went back to his trailer, entered it, and called a funeral home to get an ambulance. The owner of the funeral home, Edison Parsons, answered the call which he stated was received between 11:35 and 11:40 p.m. The ambulance driver testified that it was extremely warm that night and that he had been sleeping in nothing but his shorts. He was of the opinion that he arrived at the scene about four minutes after receiving the call, a quick trip made possible by Ms running a one-way street. When be arrived at the scene be found Winters crouched between two vehicles which were parked in the rear of the Van Winkle house, and when he called to him, Winters came out, and he asked him where he was standing when shot. Parsons stated that Winters pointed toward the carport at the back of the Van Winkle house and said, “Right there in my yard.” Parsons testified that he also asked him who shot him and Winters replied that he did not know. While Parsons was attempting to get Winters into the ambulance Winters said, “Edison, don’t let me die.” On the
After the first operation immediately after the deceased entered the hospital, which was on the morning of September 8th, he developed breathing difficulty as a result of the chest surgery, and a tra-cheostomy was performed on September 9tb. Winters appeared to improve until September 13th at which time the doctor testified that Winters began to have heart and breathing difficulties and he told Winters that he had taken a turn for the worse and that he might die and if there was anything he wanted to say he had better say it. The doctor then took the tube from his throat, covered the incision made in the trachea and asked Winters who shot him and he replied, the woman or female. The doctor then asked him where he was standing when he was shot and he replied that he was on his side of the hedge or fence. Two brothers of the deceased were present when these statements were made. The doctor stated on cross-examination that he was not completely convinced that Winters would die and did not tell him that he was surely going to die but that he believed Winters thought he might die and realized the gravity of his situation. After these statements were made Winters’ condition improved until about September 15th at which time he became confused and thrashed about in bed. This caused a separation of the wounds which necessitated another operation on September 17th to correct the situation, after which his condition worsened and he died on September 20, 1965.
The evidence as to Winter’s statement on September 13th was objected to by counsel for the defendant, and the court, after holding a hearing on the matter out of the presence of the jury, admitted such evidence for the jury’s consideration as a dying declaration.
The state, in an apparent effort to establish a motive for the shooting, asked the deceased’s former wife if she had had a conversation with the defendant concerning her sexual relationship with the deceased, which was immediately objected to by counsel for the defendant. The objection was sustained by the court and the jury was later instructed not to consider the question in any manner. A motion for a mistrial by the defendant because of this question was overruled by the court. Another witness introduced by the state by the name of Marjorie Roub testified that she became engaged to the deceased the night before he was shot. She stated that she had visited the deceased at his trailer on several occasions and had seen the defendant looking out her back window toward the trailer which testimony was admitted in evidence over the objection of the defendant. The defendant admitted that she looked out the back window of her kitchen while she was working. Although such evidence lacks probative value, the admission thereof does not constitute error.
The record indicates that Verna Snyder had a heart attack the night before she was to testify and when this was announced to the trial court it instructed the jury not to consider the questions asked of the defendant, that is, if she had called the deceased a “son-of-a-bitch” and had said that he could go to hell. The defendant was also asked if there had been any trouble between her husband and the deceased, which was ruled inadmissible by the court. No written statement was ever made by the defendant during the investigation of this case although she was given an opportunity to make one.
Prior to the trial of the case a motion was made by the defendant for a change of venue which was accompanied by nine affidavits of citizens of Jackson County. The affidavits were quite similar in nature, to the effect that the defendant conld not get a fair trial in Jackson County, and were apparently based on stories published in newspapers in Jackson County with regard to the crime. The state filed an answer denying the allegations contained in the motion for a new trial and filed five affidavits therewith to the effect that although there had been considerable comment about the homicide it had gradually died out by the time the case was set for trial. The newspaper stories which were filed in connection with the motion were almost identical to the defendant’s testimony at the trial and they contained quotations from the deceased’s brother that if Glenn Winters survived, his story would be different from that of the defendant, but there was no statement in the papers as to what the story would have been. In other words, only one side of the story was printed in the newspapers and this was favorable to the defendant rather than to the prosecution.
One of the grounds urged in the motion for a new trial was based on after-discovered evidence. It appears that after the final arguments and before the jury returned its verdict, the attorney for the defendant was informed by a state trooper that the state police had some evidence that wood and glass were found on the clothing worn by the deceased at the time he was shot, and the defendant’s attorney claimed that he had no knowledge that any such evidence existed up to that time, although it had been contained in a state police report. Defendant’s attorney contended that he had been misled by the evidence and statements of the state to the effect that there was no glass or wood on the person or clothing of the deceased. Affidavits of Lieutenant Barber and Corporal Langley of the State Police filed in support of the motion for a new trial based on after-discovered evidence were to the effect that they examined the deceased’s shirt which was worn at the time he was shot and found what appeared to be fine wood particles and that upon an examination of the shirt two small particles of glass were found mixed with blood and a small wood particle, and that they had so advised both the then prosecuting attorney and the attorney who had been employed by the family of the deceased to prosecute the case. These particles were found under microscopic examination in the laboratory, and a notation of their presence was contained in a state police report. The trial court overruled the motion for a new trial on the ground of after-discovered evidence because it was' not timely requested inasmuch as the defense attorney had knowledge of such evidence before the trial was completed and before the jury returned its verdict. Also,
Fifteen assignments of error are relied upon fox-reversal. They can be consolidated in the following-manner :
(1) The Court erred in refusing to grant the defendant a change of venue; (2) in refusing to direct a verdict for the defendant and in refusing to set aside the verdict of the jury and to grant the defendant a new trial because the same was contrary to the law and evidence and also on the ground of after-discovered evidence; (3) in admitting improper evidence; (4) there was improper conduct on the part of the attorney representing the state; and, (5) the court erred in refusing to give instructions 9, 12 and 20, offered by the defendant.
The first assignment of error we will take up is that dealing with the motion for a change of venue. The affidavits and newspaper articles filed with said motion do not indicate that the publicity given to this case was inflammatory or that it would tend to influence the jury in its determinations against returning a fair and just verdict. The burden is on the defendant to prove the need for a change of venue and the existence of prejudice at the time of the trial. The granting of such motion rests in the sound discretion of the trial court. State v. Powers,
It does not appear that the trial court abused its discretion in its refusal to grant a change of venue in the case at bar. The affidavits filed by the defendant and by the state were in conflict and the newspaper articles filed in support of the motion, even though given wide publicity, would not be considered prejudicial to the defendant. Therefore, the trial court did not err in refusing to grant a change of venue in this case.
The second group of assignment of errors is the refusal of the trial court to direct a verdict for the defendant, the refusal to set aside the verdict of the jury and to grant the defendant a new trial because it is contrary to the law and evidence, and the refusal to set aside the verdict on the ground of after-discovered evidence. These will be discussed together.
The contention that the trial court should have directed a verdict for the defendant is without merit. The evidence in this case is uncontradicted that the defendant discharged a shotgun through the window of her home and as a result thereof killed G-lenn Winters. In such cases the law is clear that where a deadly weapon is used in a homicide there is a presumption of second degree murder and the defendant has the burden of proving that it was justified and the state has the burden of proving that such killing was deliberate and premeditated and raising it to first degree murder,
The trial court was also justified under the facts of the ease at bar in refusing to set aside the verdict of the jury and to grant the defendant a new trial on the ground that the verdict was contrary to the law and evidence. The evidence relative to the shooting which resulted in the death of Glenn Winters clearly presents a question for jury determination. It shows that on the night of September 7, 1964, the defendant was sitting in a small room in her home watching television. It was an extremely hot night although, according to defendant’s testimony, the window in the small room in which she was watching television was closed and covered by a Yenetian blind and drapes. She testified that about 9 o’clock in the evening she heard the window being slowly raised and called out, “Who is there, go away, or I will shoot.” She did not shoot but stated that she got a gun and went over to her mother’s home across the street, got her mother to look around the premises outside the hоuse and called her husband. Street lights were burning in the vicinity of the home and her mother found no one outside the house when she inspected it. Her husband, a deputy sheriff, remained at his home for a period of about one-half hour, at which time he gave the defendant a shotgun and either showed her how to load it or loaded it himself. Her mother, while at the defendant’s house, closed the window in the television room hut raised the window again at the request of the defendant so that her husband could see the window in a raised position when he came to the house. There is no evidence that the window was ever lowered after the first instance when it was left raised by the mother. However, according to the testimony of the defendant, about 11:30 she heard the window being raised again and observed movements of the antenna wire in the window. Although she saw no one and made no outcry as she had done on the first occasion she grabbed the shotgun which was nearby and fired through the window which was open, making a small hole in the drapes and the bottom sash of the window. Scattered pellets from the charge struck the deceased in the chest and left arm, four pellets penetrating the heart area, some being merely superficial and later picked out by the undertaker. There was no blood or footprints outside the window but blood was found near the deceased’s trailer and on the telephone book he used to call the ambulance. A city policeman testified that after the shooting the defendant told him that she had shot “him” and asked what they would do to her. The defendant denied making this statement but said that she had shot the gun and asked what will happen now. After the defendant went to her mother’s house and talked with her mother, an episode occurred, as testified to by a neighbor, in which the mother told the neighbor some time later that the defendant had shot the deceased and an ambulance was at the scene. Her mother stated that an officer told her the defendant shot Winters and she, in effect, later denied that she said an ambulance was at the scene. There was evidence that one could see out the window through which the shot was fired by standing in a certain position. The jury could consider all of this evidence in arriving at its verdict. In the fact that defendant fired the gun without warning and although she denied saying she shot the deceased, there is evidence for the jury to weigh and consider that she did see whom she was shooting. If the jury believed from the evidence adduced during the trial of this case, which it no doubt did, that the defendant fired the shotgun charge through the window and struck the deceased with knowledge of this fact and he was not attempting
The jury had the right to infer malice on the part of the defendant because the homicide was committed with a deadly weapon. State v. Bowles,
Another assignment of error in this category is the refusal of the trial court to set aside the verdict on the ground of after-discovered evidence. This assignment is based on information the attorney for the defendant obtained from a state policeman after the final arguments and while the jury was out deliberating the case but before the verdict was returned. No motion was made to the trial court until after the jury had returned its verdict and the motion made to set aside the verdict. The state had introduced evidence that there was no glass or wood found on the body or clothing of the deceased. A laborаtory microscopic examination of the shirt which the deceased was wearing at the time he was shot was made by the state police. The discovery of the pulverized or fine particles of glass and small particles of wood was obtained by a microscopic examination in the laboratory. It was contained in a state police report and the evidence indicates that the then prosecuting attorney and the special prosecutor were informed and advised of this fact. It is the duty of the regular prosecuting attorney or the special prosecuting attorney to prosecute the offense for which an accused is charged but it is also their duty to see that an accused is afforded a fair and impartial trial. 4 M.J., Commonwealth’s and State’s Attorney, §4; State v. Hively,
A new trial on the ground of after-discovered or newly discovered evidence is very seldom granted and the circumstances must be unusual or special. State v. Spradley,
The law applicable to the granting of a new trial on the ground of after-discovered evidence is clearly stated in the single syllabus of State v. Farley, supra, which reads as follows: “ ‘A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfac-factorily explained. (2) It must appear from facts stated in his affidavit that plaintiff was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side.’ Point 1, syllabus, Halstead v. Horton,
It can readily be seen tbat tbe motion for a new trial on tbe ground of newly discovered evidence under tbe circumstances in tbis case does not meet tbe requirements on several grounds. It was discovered before tbe verdict was returned and motion should bave been promptly made at tbat time. Tbe information could bave been ascertained by tbe use of due diligence before or during tbe trial and because of tbe nature of tbe evidence tbe materiality is very questionable, and tbe evidence would not bave affected tbe result. The only use of said evidence would appear to be to discredit or impeach witnesses but it was of questionable value even for tbat. If any of tbe essential requirements as set out in tbe syllabus point quoted above are not satisfactorily complied with, a new trial will never be granted on such grounds. State v. Farley, supra.
Tbe next group of assignment of errors relates to tbe admission of improper evidence and improper conduct on tbe part of tbe attorney representing tbe state.
It is tbe contention of tbe defendant tbat it was reversible error to introduce statements made by tbe deceased to tbe ambulance driver at tbe time be arrived at tbe scene and talked with tbe deceased and during tbe time tbe deceased was on tbe way to tbe hospital and statements made to a doctor while be was in tbe hospital. Tbe ambulance driver arrived on tbe scene within a few minutes after be was called by Winters and be asked Winters where be was standing when be was shot and tbe deceased pointed toward the edge of tbe carport behind tbe Van Winkle borne and said, ‘ ‘ Right there in my yard. ’ ’ Tbis evidence would appear to be admissible under tbe doctrine of res gestae. See Lawrence v. Nelson,
The second occasion of a dying declaration was when the deceased was in
The trial court heard all of the evidence with regard to each of these statements out of the hearing of the jury and ruled that such statements were admissible and then the jury was allowed to hear the evidence. These statements with regard to where the deceased was located at the time he was shot are admissible as res gestae or dying declarations, or both, in the first instance and as dying declarations in the second. 1 Wharton’s Criminal Evidence, §297 et seq.; State v. Meek,
The court heard the evidence with regard to the dying declarations out of the hearing of the jury and ruled on the admissibility before allowing the jury to consider it, in accordance with the “orthodox” rule, adhered to in West Virginia. State v. Meek, supra; State v. Graham, supra. The rule is the same with regard to confessions. State v. Vance,
Notwithstanding the fact that the trial court complied with the rules covering the admissibility of the evidence with regard to dying declarations and confessions thе defendant offered instruction number 21 which was given by the court stating that the jury was the judge of the weight, credibility and admissiblity of such evidence. The orthodox rule adhered to in this state is that the jury is only concerned with the weight and credibility of such evidence. The court is required to determine its admissibility before such evidence is ever submitted to the jury, all of which was done in the instant case.
It is now the contention of the defendant that it was error to give instruction number 21 offered by said defendant due to the fact that the verdict of the jury did not, after such instruction, contain a statement that the jury had found that the evidence was admissible. For this, defendant relies on the recent United States Supreme Court case of Jackson v. Denno, 378 U.S. 368,
It is also the contention of the defendant that the attorney representing the state who had the right to open and close did not make a fair opening in the closing arguments in violation of Canon 22 of the Code of Ethics, Code of Professional Ethics,
We have carefully examined the closing arguments made on behalf of both the state and the defendant and find no reversible error in connection therewith. The attorney representing the state could have made a fuller opening argument which should always be done in both criminal and civil cases in order not to mislead or withhold any material points supported by the evidence and relied on to support the state’s or plaintiff’s position. However, the able closing argument made by tbe defendant’s attorney anticipated all of the argument contained in the closing argument made by the attorney representing the state.
The trial court sustained objections to much of the other evidence defendant complains of or its admission was not made a point of error in the petition for appeal. Several questions relative to whether defendant had a telephone and why it had been disconnected and for what reason were admitted into evidence and their admission was made a point of error on appeal on the ground that they had no probative value and created suspicion in the minds of the jury. In view of the testimony by defendant about traveling acrоss the street to use her mother’s telephone, these would be logical questions, and although the answers produced no worthwhile information we cannot see but that the questions themselves were proper ones.
The objections were not only sustained but the jury was instructed not to consider the question asked the divorced wife of the deceased relative to the sexual relations between the defendant and the deceased. This evidence was apparently an attempt to establish motive which is not necessary in a case of this kind. 1 Wharton’s Criminal Law and Procedure, §64; 9 M.J., Homicide, §83.
The questions asked the defendant on cross-examination as to whether or not she had called the deceased a “son-of-a-bitch” and said he could “go to hell” were answered in an evasive manner, and after it was explained to the trial court that the witness to whom these statements were made or in whose presence they were made had suffered a heart attack and had been taken to a hospital the night before she was to testify, the trial court instructed the jury not to consider such evidence. It is the contention of the defendant that the questions asked these witnesses amounted to reversible error and she relies on the case of State v. Corbin,
It is the contention of the defendant that the trial court erred in giving instruction number 5 offered by the state and refusing instruction number 9 offered by the defendant. Both of these instructions are instructions on reasonable doubt and in effect amounted to the same thing and it has been held that where there are two instructions in form and effect embodying the same legal principle and amounting to the same thing it is not reversible error to give one and refuse the other. State v. Rice,
Although the majority of the Court were of the opinion that the bills of exceptions had been timely obtained, it should be pointed out that the final order of March 15, 1965, sentencing the defendant to the penitentiary only suspended the execution of the judgment by a stay of execution thereof for a period of ninety days and did not extend the time within which the defendant’s bills of exception could be tendered, signed and certified. The order merely stated that the defendant ‘ ‘ * * * having moved the Court for a stay of execution of her sentence in order to perfect such appeal the Court doth order that a stay of execution be granted unto the defendant for a period of ninety days in order to perfect her appeal and to get her bills of exception signed by the Court, * * * ”. The bills of exceptions or certificates in lieu thereof were filed on June 12, 1965, more than sixty days after the final order and after the adjournment of the January term of court. A bill of exception or certificate in lieu thereof must be tendered to the judge and signed by him within sixty days of the adjournment of the term in which the final order was entered or within sixty days from the date the order is entered if entered in vacation unless the time is specifically extended for the obtaining of such bill of exception or certificate in lieu thereof. Code, 56-6-35 and Code, 56-6-36. It has been held many times by this Court that a stay of execution for a certain period of time and the extension of time within which to obtain bills of exception or certificates in lieu thereof to be filed are separate and distinct procedures and the extension of time for one does not extend the time to obtain the other. State v. Varner,
For the reasons stated herein, the judgment of the Circuit Court of Jackson County is affirmed.
Affirmed.
Dissenting Opinion
dissenting:
I dissent. It is with respect and deference that I disagree with the other four members of the Court in this case, but in my opinion the evidence falls far short of sustaining a verdict of guilty of murder in the second degree and such verdict, viewed in the light of other errors occurring in the course and conduct of the trial, even though the majority has determined them not to constitute reversible error, neverthless, brings me to the firm conclusion that the defendant has been denied the fair trial to which she was entitled.
The pertinent facts in this case are comparatively simple, the physical facts and much of the state’s evidence confirming completely the statements made by the defendant immediately after the deceased was shot as well as her testimony at the trial. A young mother with two sleeping children in the house whose husband, a deputy sheriff, was away on duty discovered some person attempting to enter her house by way of a window and, retreating as far as possible without leaving the room, blindly fired a shotgun at the window, the shot piercing the drape, a Venetian blind, and a portion of the sash as well as a portion of the pane of glass. The evidence shows without contradiction that this was the second time during that evening and night that someone had attempted to enter the defendant’s home by way of that window. In his opinion, which has been made a part of the record in this case, the able trial judge found: ‘ ‘ She never saw the deceased before she fired the gun. She did not know who or where he was. She only heard a noise at the window as if someone was raising it. Then she loaded the gun, stepped to the door, and fired. He could have retreated in the meantime.” Reference to the physical facts of the case admits of no alternative that deceased, if he had begun to retreat, had not retreated more than a step or two, and also, that the defendant could have had no knowledge of this supposed retreat. The state’s evidence revealed
It is also in evidence, through comparison оf the drape, Venetian blind and window sash, that the direction of the shot was at a slight angle downward. The height of the window sill from the ground was forty-six inches. To align the holes in the drape and blind with that of the sash, the sash must have been raised three or four inches making the course of the shot approximately fifty inches above the ground. The deceased was approximately five feet eight inches, or sixty-eight inches, tall and the shot struck him mainly in line with the left nipple, approximately fourteen inches from the top of his head or at a level on his body of fifty-four inches. The downward path of the shot is obvious from the window sash in evidence and it thus becomes apparent, with only a rudimentary knowledge of the laws of physics, that the deceased was in a slight crouch in close proximity to the window, on defendant’s property, at the time the shot was fired. If he had been standing erect at the window the shot would have centered some four inches lower or, if standing erect at the hedge, still on defendant’s property, approximately seven inches lower or near the belt line. If, as the state contended and the jury apparently believed, the do-ceased was beyond the hedge “in my yard” at the time of the shooting the shot would necessarily have struck him below the waist. As further proof of the downward course of the shot, not one pellet was found in the side of the Van Winkle frame house, a mere twenty-seven and one-half feet from the window through which the shot was fired. The state’s contention that, under the above circumstances, the defendant fired blindly out of the window striking the deceased who was on his own premises, and who was “not attempting to enter her house” as assumed in syllabus points 5 and 7 of the majority opinion, is then utterly without foundation and, as necessarily follows, the deceased was on defendant’s property at or near her window at the time of the shooting, there is no evidence to contradict her statement that the deceased was attеmpting, or gave her reasonable grounds to believe that he was attempting, to enter her home for some malevolent purpose at the time she fired the shot. It does not require the citation of authority to note that, while the jury determines the credibility of witnesses and the weight to be given to their testimony and is entitled to draw reasonable inferences from the proved facts in a ease, such inferences must be reasonable and the jury should not be permitted to ignore physical facts totally inconsistent with such inferences and this Court is not compelled to accept as true, because apparently so found by a jury with the approval of the trial court, facts which in the nature of things could not have occurred in the manner and under the circumstances narrated.
The rule is well established in this jurisdiction and elsewhere that a man’s home is his castle, and that he has a right to protect it and those within it from intrusion or attack. A person may repel force with force in defense of his person, habitation, or property against one who manifestly intends or endeavors by violence or surprise to commit a known felony, such as murder, rape, robbery, arson, burglary, etc. In these cases
The legislature of this state has not seen fit to lay down a rule with regard to this matter and therefore as the constitution of this state provides the English common law is still in effect and binding upon this Court. The judicial decisions in England, the colonies and the states since the separation in an uninterrupted and nn-deviating line have adhered to this principle — a person not only may take life in his own defense, hut may do so in defense of other persons where the circumstances warrant. He may do so where the relationship of wife, parent, or child exists. The rule is the same as to the right of a wife to defend her husband or her child. Many of the cases say it is not only the right of such person to protect their loved ones but it is their legal duty to do so. Bailey v. People,
This Court, until the decision of this case, has been aligned with the cited authority. In State v. Manns,
In State v. Clark,
I am of the firm opinion that the giving of State’s Instruction No. 12 was reversible error. That instruction is as follows: ‘ ‘ The Court further instructs the jury that if you believe beyond a reasonable doubt that Bonnie June Hamric inflicted a mortal wound with a deadly weapon in her previous possession upon G-len Winters, without any, or upon very slight provocation, then this is prima facie, wilful, deliberate and premeditated killing and throws upon Bonnie June Ham-ric the necessity of proving extenuating circumstances and unless Bonnie June Hamric proves such extenuating circumstances or the circumstances appear from the case made by the State, she is guilty of murder of the first degree.” The word “provoke” connotes umbrage, harassment, offense, inflamation, etc. In my opinion the phrase “slight or no provocation” was inappropriate and reversible error as used in the state’s instruction No. 12 givеn by the trial court to the jury. In the Manns opinion it was stated: ‘ ‘ Jurors look to the court for advice as to the law, and when the court gives them an instruction, they have the right to rely on it as stating the law of the case. What in law is deemed slight provocation they do not know, and if the court uses the language above they take it for granted that the provocation, if any at all, was only slight in law, otherwise the court would not give such an instruction.” Finally, Judge Dent said: “A law abiding citizen would have concealed his family and sought the aid of an officer of the peace, if he could be found. . . . But an average man with an average temperament would have given blow for blow, shot for shot, eye for eye, tooth for tooth, life for life. Whether the prisoner went farther than the law justifies him in doing he has the right to have an impartial jury
In State v. Whitt,
Although, as heretofore pointed out, the physical facts show that the deceased must have been on defendant’s property at the time of the shooting, his proximity to the window becomes of crucial importance to further corroborate the defendant’s recital of the circumstances. The state’s evidence shows that glass and wood particles from the window did not extend into the yard more than three feet. The existence or non-existence of such debris on the clothing of the deceased thus becomes vital and, while I agree with the majority that the defendant did not make a proper showing for a new trial upon the ground of after discovered evidence, I am firmly convinced that the deliberate suppression of evidence that such debris did appear on the clothing of the deceased was reversible error. In the affidavits of Lt. R. J. Barber and Cpl. R. F. Langley of the department of public safety, experts in their fields
In the early morning of September 8th, Harl Winters, a brother of deceased (who stated under oath that he had employed the spеcial prosecutor in this case, as he had a right to do) testified that he turned deceased’s shirt over to Trooper Britton at a Charleston hospital where deceased had been taken. Trooper Britton turned the shirt over to Cpl. Casey, who thereafter gave it to Cpl. Langley. Cpl. Langley stated in an affidavit that on or after September 10, 1964, “he examined the shirt delivered to him, both visually and miscroscopically, and that near the left pocket of the said shirt amidst the blood upon the said shirt, he discovered two particles of broken or shattered glass, a small piece of wood and what appeared to be a flattened
Pointing up the atmosphere in which this defendant was tried and which I believe precluded her from receiving a fair trial, the state placed the former wife of the deceased on the stand and asked this question: “Mrs. Winters, did you ever have a conversation with Bonnie June Hamric, the defendant, concerning her sexual relationship with Glen Winters?” The question was objected to and sucb objection was sustained, but the barm bad been done. Tbe prosecution thus informed tbe jury, by fair means or foul, that at some time prior to tbe shooting of Grlenn Winters, be and tbe defendant were engaged in an extramarital sexual relationship; that shortly before be was shot Winters discarded tbe defendant for one Marjorie Roub; and that because of defendant’s jealousy of Marjorie Roub and tbe deceased she shot and killed tbe latter. Tbe following testimony was elicited upon direct examination of Marjorie Roub, and tbe court permitted tbe jury to consider sucb evidence in determining tbe guilt or innocence of tbe defendant:
“Q. When did you first meet Grlenn Winters?
“A. In January of ’64.
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“Q. Would you tell us tbe last time you can recall visiting thаt trailer before tbe night of September 7,1964?
“A. It was tbe Friday night before.
“Q. Had you ever visited tbe trailer, visited Glenn Winters when you observed Bonnie Ham-ric?
“Objection: Overruled.
“A. Yes.
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‘ ‘ Q. Where was she located when you saw her ?
“A. In her window.
“Objection: Mr. Savage. Motion to strike.
“Tbe Court: Tbe motion is refused. (Exception).
‘ ‘ Q. You said in her window, would you tell me what window she was in when you saw her?
“A. It would be tbe back window on tbe left band side.
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‘ ‘ Q. Where were you standing at the time you saw her?
“A. We were sitting in the trailer.
‘ ‘ Q. Were you with someone in the trailer ?
Í£A. I was with Glenn. ’ ’
This witness then testified that on five or six occasions while she and the deceased were sitting in the trailer Bonnie June Hamric stared at them. Then comes what, in my opinion, was so viciously prejudicial that a mistrial should have been declared at that point if one -had been sought. This witness was permitted to testify that on the night before he was killed she and Glenn Winters became engaged to be married; that he gave her an engagement ring; and she was allowed, over objection, to hold up her hand and show the engagement ring on her left ring finger.
In State v. Corbin,
This condemned strategy of building one inference upon another inference to establish a fact that could not be proved was utilized in several ways in the instant trial. For example, with reference to the telephone having been disconnected in the Hamric home some time prior to the shooting, the defendant was cross-examined at length, over objection, about that matter. That in itself might have been harmless but in his closing argument to the jury the prosecutor was permitted to make this statement with regard to that subject: “You remember the evidence. He talked about the telephone, said it wasn’t important. Certainly it is important. Next door neighbors for seven years, I think she said she lives next door, but hasn’t talked to him [deceased] for a long time, hasn’t a telephone, whenever I said it was a physical object in the room, but she said it wasn’t working, couple with young children, telephone not connected, woman looking out the back window through the Venetian blinds which hang on the bathroom window, not on four occasions, but I think on five or six; Grlenn Winters and Marjorie Roub become engaged on the night of September 6 and the shooting occurred on September 7.” There was no factual evidence in this record that the deceased and the defendant ever engaged in any extramarital sexual affair, that the defendant ever threatened the deceased, that she had been alone in his company at any time prior to the shooting, or that she had even “talked to him for a long time” prior to the shooting. The state knowing that it was unable to establish a motive by admissible evidence, in clear violation of the rule laid down in the Corbin case, by insinuation and innuendo, attempted to do that which is forbidden by the law of this state — establish a fact by building an inference upon an inference, and the cumulative effect of such evidence was clearly reversible error. The majority distinguished this case from the Corbin case upon the ground that such evidence was permitted to go to the jury in the Corbin case whereas in this case “the objections to the questions . . . were sustained and the jury instructed not to consider them.” That is not true with reference to the testimony of Marjorie Roub or the evidence relating to the telephone.
Although both the trial court and this Court found that no motive was necessary upon the facts of this case to sustain a verdict of second degree murder, this Court found that there was evidence from which
As to the proposition that the defendant might have been able to see the deceased the state’s witness, Corporal R. L. Casey, was asked these questions and made these answers: “Q. What about the Venetian blinds? A. They were closed where you could see from the door, you couldn’t see out. Q. If you would stand up close to the blind, that is, the tilted blind, could you then see out? A. Yes, sir.” (Italics supplied.) Upon cross-examination as to
“Q. Could you actually see and identify persons or could you see movement and light?
“A. I could see movement and light; you could see where I was standing with the curtain bach.
‘‘Q. You mean where Mr. Whitehouse is standing?
“A. Mr. Whitehouse is not in this picture.
“Q. This is you?
“A. Yes, sir.
“Q. Then standing right np against the window like so and by glancing down, you can see out?
“A. Yes, sir, you can see out.
“ Q. As you see right straight across, you can’t see out?
“A. You have to look down.
“Q. And you can only do that from a very close distance?
“A. I stated from the door you can’t see out there apparently.
‘ ‘ Q. And in no event could you see out looking directly, that is, straight out horizontally at the Venetian Minds, could you?
“A. I wouldn’t think so, no, sir.”
(Italics supplied.)
Although hereinabove I have discussed the impossibility of the deceased being shot by the defendant if he were standing directly in front of the window of the den and beyond the hedge “in his own yard” in front of the wall of the Yan Winkle house, that was done only because there was an assumption apparently by the trial court and the prosecution that the deceased was at that place when he was shot. The only evidence in this record as to where the deceased was when he was shot other than at the window came from the witness Edison Parsons and was in the form of a quotation from what the deceased was alleged to have told him [Parsons] shortly after his arrival at the place where he found the deceased shot. On redirect examination by the speciаl prosecutor Parsons was asked this question and made this answer: “Q. Where did he show you he was when it happened? A. Corner of the carport there in his yard. ” It is not difficult to compute certain distances from the state’s exhibit showing an aerial view of the area and by the state’s evidence that it is twenty-seven and seven-tenths feet from the Hamric house to the Van Winkle house. It is evident that the distance from the window of the den to the edge of the carport where the deceased said he was shot is at least thirty-four feet and we know from the state’s evidence that the barrel of the gun inside the den was at least three feet from the drapes when the defendant fired the shot that killed the deceased. We know from the testimony of Corporal Casey, quoted above, that it was utterly impossible for the defendant to have seen the deceased behind a hedge “higher than a man’s head in most places” thirty-four feet away from the window with the Venetian blinds pulled together. Furthermore, the carport was not “approximately opposite” the window of the den as stated in the majority opinion. The state’s exhibits show that a point on the wall of the Van Winkle house directly opposite that window is at least twenty-five feet from the corner of the carport.
The contention of the majority that this kind of evidence would have supported a verdict of murder in the first degree is not warranted by the law of this state. If the deceased had been at the corner of the carport as contended, in view of the trajectory of the charge, as heretofore discussed, the shots would have gone harmlessly into the ground many feet in front of the deceased even if the gun had been aimed in that direction, which it was not. There is no evidence of premeditation, no
The following statements contained in the majority opinion are either inaccurate or do not state the law applicable to the facts of this case: (1) On page six of the typewritten opinion is this statement: ‘ ‘ The hedge varied in height from around four to five feet or more.” There is no evidence in this record to that effect. Corporal Casey first stated that the hedge was “higher than a man’s head in most places” but upon being recalled said there were some places where it was no higher than his shoulder, he being five feet eleven inches in height. (2) On page thirteen, in referring to the affidavits of police officers Barber and Langley, and their finding of particles of glass and wood upon the deceased’s shirt, is this statement: “These particles were found under microscopic examination in the laboratory, and a notation of their presence was contained in the state police report.” Both of these officers said that such particles could be observed and were observed by them visually and that it was not necessary to use a microscope to see them. (3) On page seventeen the majority states: “Although she saw no one and made no outcry as she had done on the first occasion she grabbed the shotgun which was nearby and fired through the window which was open, making a small hole in the drapes and the bottom sash of the window.” (Italics supplied.) All of the evidence of the state and the exhibits before us show that the window was either closed or raised no more than three or four inches at the time the shot was fired and that the charge pierced the glass and sash of the window as well as the Venetian blind and the drape. One of counsel for the stаte in his closing argument to the jury, in a desperate attempt to distract the attention of the jurors from the evidence regarding the window, also made these untrue statements with regard to it. “I said, Mr. Parsons, if you extend the line to which he was pointing, where would it go to, he said, toward the rear window out of which Bonnie was pointing the gun. Physical facts. And glass three feet away. Mr. Savage said I should have talked about it in my opening statement. I wasn’t as smart as him; I am no expert with shotguns. You gentlemen know, you take a shotgun, you stand with that muzzle two feet away, seven feet away from the window, you fire a shot through the window, you tell me that glass is only going to go three feet, if you actually believe she does that, no screen on the window, a 12-gauge shotgun, muzzle seven feet away, glass only three feet away, nothing from the other side as it went through the blind. The doctors told you there was no glass on his body, no cuts, no wounds, no arms up, you are full of little holes, could have been only as Dr. O’Dell told you, that under his arm had probably ricocheted. How come the glass was only three feet away, how did the big piece of glass get through into that room, how did it get there, you are shooting from the inside, the piece of glass is too big. If you break the glass out with the barrel, then let the drape fall, then — .” At this point counsel for defendant objected, there was no ruling by the trial court, and counsel for the state continued his argument in a similar vein.
I cannot conclude this opinion without posing a query: The deceased was in a hospital in Charleston, forty miles from Ripley, from the seventh of September until his death on the 20th. After his second “dying declaration” on the 13th, the state’s evidence shows that his condition improved for a few days. Why, during
It is, also, my understanding that a majority of the Court was of the opinion that bills of exceptions had been timely filed and that this case was considered upon its merits. Of course, a failure of a trial court to sign a bill of exception or a certificate in lieu thereof within the statutory period, or an extension thereof by an order of the court, is fatal. Nevertheless this matter was discussed in the last three pages of the Court’s opinion and this sentence contained therein troubles me somewhat: “However, notwithstanding this situation, we have carefully reviewed all of the assignments of error and do not find any of them constitute reversible error as indicated in this opinion.” The final order, entered March 15, 1965, contained the following-language clearly covering this matter and I quote the last sentence thereof: “And the defendant, having expressed her intention of appealing her conviction and sentence to the Supreme Court of Appeals of W. Ya., and having moved the Court for a stay of execution of her sentence in order to perfect such appeal the Court doth order that a stay of execution be granted unto the defendant for a period of ninety days in order to perfect her appeal and to get her bills of exception signed by the Court, and further, upon motion of the defendant the Court doth further order that the said defendant be admitted to bail in the amount of ten thousand dollars.” That order not only extends the stay of execution of the defendant’s sentence but it also, in my opinion, clearly extends the period for ninety days within which “to get her bills of exception signed by the Court, . . . .”
For the reasons stated herein I would reverse the judgment of the Circuit Court of Jackson County and remand the case to that court for a new trial.