62 W. Va. 129 | W. Va. | 1907
Burley Lamb and Paris May were jointly indicted at the January term of the circuit court, 1906, for the murder of Sine Slyman. The indictment is in the form prescribed by the statute, section 4200, chapter 144, Code 1906. The word “wilfully,” descriptive of the offense in the statute, is omitted from the indictment as printed in' the record; but a certified copy from the original record thereof shows that the original indictment is not wanting in this word.
May elected to sever on his trial. He was arraigned the day after the indictment, and, after two postponements and three unsuccessful motions for continuance on the ground of absence of witnesses, was put upon trial on January 17 th. The trial was concluded on the following day, when the jury returned a verdict as follows: “We the jury find the defendant, Paris May, guilty as charged .in the within indictment.” Amotion was at once entered by the prisoner in arrest of judgment and to set aside the verdict as contrary to the law and evidence, which motion was overruled, and the defendant excepted; and without further preliminaries, the court pronounced judgment that the prisoner be taken to the penitentiary, there confined until May 18, 1906, and then hanged by the neck until dead.
Section 4584, chapter 159, Code 1906, provides that “if a person indicted for murder be found by the jury guilty thereof, they shall in their verdict find whether he is guilty of murder in the first or second degree. If they find him guilty of murder in the first degree, they may in their discretion further find that he be punished by confinement in the penitentiary. If such further finding be not added to their verdict, the accused shall be punished with death, but if added he shall be punished by confinement in the penitentiary during his life.”
In this state, where homicide is proven the presumption is thai it is murder in the second degree. State v. Cain, 20 W.
This error is alone sufficient to reverse the judgment; but as this case will go back to the circuit court for a new trial, it is proper we should pass upon other errors relied upon by the prisoner. We need not, however, notice the first one .assigned, the ruling upon his motions for a continuance, as it will be immaterial on a subsequent trial.
The second error relied upon is the admission of the testimony of the justice as to what the prisoner stated before him on a preliminary examination. On the trial the court, over
The only other error assigned is the giving of instructions five and six propounded by the state, which are as follows: “Fifth. The court instructs the jury that if they believe from the evidence beyond a reasonable doubt that Sine Sly-man came to his death by a gun shot wound inflicted by Burley Lamb, and that the defendant Paris May instigated and planned the killing from ambush, and by threats and menaces compelled the said Burley Lamb to fire the fatal shot which killed the deceased, and that said Paris May borrowed the gun with which the deceased was killed and gave it to the said Burley Lamb, and that the said Paris May was present at the shooting, aiding, counselling and abetting in the commission of the crime when the shot was fired, and cut the pack from the deceased and took his money, watch and pocket-book from the person of the .deceased, at the time of the murder, then they will find the defendant, Paris May, guilty of murder in the first degree.” “Sixth. The court instructs the jury that while it is dangerous to convict on the uncorroborated testimony of an accomplice, yet, when said testimony is corroborated by other evidence and circumstances such as finding of property and the testimony of other witnesses, they have a right to believe or disbelieve according to the circumstances the testimony of said accomplice.” The objection to the instructions is that they single out and give undue prominence to certain facts and ignore others of equal importance in the determination of the case. If subject to such criticism they are not proper (State v. Dodds, 54 W. Va. 289, and cases cited;) but we do not think they are. The fifth instruction told the jury in effect that, if May instigated and planned the killing from ambush, and by threats and menaces compelled Lamb to fire the fatal shot, he was guilty; and his interests were not affected by calling the attention of the jury to the evidence of his borrowing and giving to Lamb the gun with which the deceased was killed, and of his cutting the pack from the back of the deceased and taking his money, watch and
For the reasons stated, we are of opinion to reverse the judgment, set aside the verdict, and award the defendant a new trial.
Reversed.