57 W. Va. 228 | W. Va. | 1905
Okey Taylor, convicted of murder, in the circuit court of Upshur county, and sentenced to imprisonment in the penitentiary for a period of fifteen years, complains of the judgment, assigning numerous errors.
One is based upon the action of the court in rejecting a plea in abatement, setting up irregularity in the organization of the grand jury which found the indictment against him. Before this plea was tendered, the indictment had been found in Gilmer county on the 2nd das'- of October, 1903. On thefol-lowing day, the prisoner had entered his plea of not guilty. On the 23rd day of Jafmary, 1904, he had filed his petition for a change of venue and obtained such change to Upshur county, by an order entered on the 29th day of January, 1904. On the 14th day of March, 1904, in the circuit court of Up-
I think the plea came too late and was properly refused for that reason, but my associates are of a different opinion. They do think that, after the plea in bar had been entered, the court had discretion to refuse to allow it to be withdrawn and the plea in abatement entered, but they think that, as the court permitted the former to be withdrawn, it had not discretion thereafter to refuse to entertain the latter. All agree to the general proposition that the right to plead in abatement is waived by pleading in bar, and that, thereafter, it is in the discretion of the court to allow, or not to allow, the benefit of such plea. This Court so decided in State v. Pine, 56 W. Va. 1, (48 S. E. 206.) The courts and text-writers, in declaring the rule, generally say the court has discretion to allow the plea of not guilty to be withdrawn and the plea in abatement to be entered. 12 Cyc. 357; Com. v. Scott, 10 Grat. 749; 1 Bish. Cr. Pl. 756. The enunciation of the principle has been made for the most part in cases in which leave to withdraw has been refused. Hence, the form of expression adopted has naturally suggested itself, and should not'be taken as an accurate indication of the principle upon which the courts have acted. The withdrawal of the plea in bar, and the filing of the plea in abatement, were necessary to the accomplishment of what the prisoner attempted to do. Both were in the discretion of the court and it permitted the one and refused to permit the other. The whole transaction is covered by one order and I do not think the court, by allowing the withdrawal of the plea in bar, surrendered its discretion as to the other plea. Technically, there was no defense after the plea in liar had been withdrawn. The record discloses, nevertheless, that a defense on the merits had been interposed, and the change of venue obtained, before the dilatory plea was tendered, and these facts apparent on the record justified the action of the court. The general rule is that such defenses must be interposed at the first opportunity. In some states, the plea now under consideration must be tendered at the term at which an appear-
However, in the unanimous opinion of the court, the plea tendered was insufficient, and was properly rejected for that reason. It averred-that those who appeared to have composed the grand jury “were not, nor was either of them, summoned in the manner prescribed by section 3 of chapter 157 of the Code of West Virginia; that the clerk of the said circuit court of Gilmer county did not at least thirty days before the October Term, 1903, of that court, at which the said supposed indictment was returned, as aforesaid, issue a writ of venire facias for sixteen grand jurors, requiring the attendance of the grand jurors on the first day of that term of the said court, or on any other day thereof, that no such
In the progress of the trial two fatal errors occurred, for which the judgment must be reversed and a new trial allowed. One of these is the ruling of the court upon an exception taken to the action of counsel for the State in the argument of the case. The prisoner exercised the privilege of testifying in his own behalf, given bj the statute. Section 19 of chapter 152, Code. The homicide occurred in a public road near the residence of the accused. As the deceased and others were approaching, the prisoner left his house and went
It is designed to enforce the common law maxim, now em
At common law, neither husband nor wife was a competent witness in any action, suit, or proceeding, civil or criminal, to which the other was a party. See 29 Am. & Eng. Enc. Law, 623, and the long list of authorities there cited;. Zane v. Fink, 18 W. Va. 693, (syl. pt. 8;) Kilgore v. Smiley, 21 W. Va. 451. Their interests were said to be identical and the law viewed them as a single individual. Moreover, public policy demands the preservation of the sanctity and harmony of the marital relation, and, therefore, forbids the testimony of husband and wife against each other, except by consent or when the proceeding is between them. This principle is somewhat relaxed by statute in this State. Code, chapter 130, section 22, chapter 50, section 107. But the provision under consideration here enforces the common law right in criminal proceedings. The purpose of the prohibi
In view of the importance of the principle involved, and the care which has been bestowed upon its preservation, the court can not permit a violation of this statute, when the prisoner claims its benefit and bases an exception upon its violation. The courts universally hold that it is sufficient to reverse a judgment. Long v. State, 56 Ind. 182; Baker v. People, 105 Ill. 452; Commonwealth v. Nichols, 114 Mass. 285; Commonwealth v. Harlow, 110 Mass. 411; People v. Tyler, 36 Cal. 522; Commonwealth v. Scott, 123 Mass. 239; Devries v. Phillips, 63 N. C. 53; Gregg v. Wagner, 77 N. C. 246.
By inadvertence, Mrs. II. II. Hite, an eye witness to the killing, who testified, not only to what she saw, at and immediately before the homicide, but also to a certain material statement made by her husband who was also a witness, was permitted to testify, without having been sworn. This omission was not discovered until after the verdict, when it was proved and relied upon as a ground for setting it aside. Though it was purely accidental and not the result of any intentional wrong, it was sufficient cause for setting aside the verdict. An oath is a sanction which the law says shall accompany the testimony of every witness, and courts cannot be permitted to dispense with it, even by oversight. It can make no difference that the omission was an innocent mistake. Its effect is the same as if it had been otherwise The object ■of the oath is to bind the conscience of the witness, as well as to make his action in testifying amenable to the criminal law.' Wilful violation of the truth after having taken the oath exposes him to both temporal and spiritual punishment. Moreover, the administration of it is a solemn admonition to the witness at the time he testifies, well calculated to keep alive in his mind a sense of his responsibility, both to God and to the law. If courts allow it to be dispensed with ■on the ground of oversight, who can tell the number of instances in which witnesses may be permitted to perpetrate
A large number of instructions were given at the instance of the counsel for the State, all of which were excepted to. As the propriety of an instruction always depends upon the character of the issues of fact involved, and the evidence relating thereto, it is necessary to briefly set out the circumstances of the killing and indicate the character of the testimony.
Okey Taylor was charged with the murder of one Marion Furr. It seems that Furr had, a short time before the unfortunate transaction of Sunday, August 2, 1903, in which he lost his life, caused Taylor to be arrested on the charge of unlawful retailing of liquors, in consequence of which it is probable that there was bitterness between them. Taylor lived about seventy-live or one hundred yards from the public road, along which Furr, in company with’ his wife, both on horseback, H. II. Hite and a young lads'- by the name of Maggie Johns, also on horseback, and Mrs. H. H. Hite and two girls in a buggy, were passing on their return from religious service. They had been to church on the morning of that day, and afterwards dined with a friend or relative in the vicinity of the church, and then attended a funeral service at another place in the afternoon. As they were passing Taylor’s place, the buggy was first in order, then came Hite and Maggie Johns, while Furr and his wife were in the rear. These persons, except the deceased, were the principal witnesses for the State. They say that, upon approaching the scene of the killing, the prisoner was seen in his yard near his house in company with other persons, but immediately arose and came out to the road and intercepted Furr and his wife at or near a pair of bars. One or more of the witnesses say that, at the time of their approach, Taylor was sitting-down, while one of his companions was apparently trimming bis hair. When near the road, or out in the road, he called
Instructions No. 2, given at the instance of the state, contains this clause: “The oath of a juror imposes on him no obligation where no doubt would exist, if no oath had been administered.” Though the giving of such an instruction might not he sufficient to reverse, its meaning is obscure and its subject matter most delicate in character. It can serve no useful purpose. The deliberations of the jury ought not to be burdened with such refinements and obscure distinctions.
Instruction No. 5 told the jury the prisoner could not justify the killing, unless he had complied with instruction No. 3, which stated the necessity of retreating before taking' life, when the prisoner' has provoked the combat in the progress of which the killing occurs. That the two instructions, read together, correctly state the law cannot be doubted, but instruction No. 5 should not have been given in that form. An instruction ought to be complete in itself without reference to others, though it need nót cover the whole case. It is bad practice, though not necessarily reversible error. Instructions Nos. 13 and 15 are open to a similar objection. Both refer to justifiable shooting “as explained in these instructions.” They required the jury to define the terms “justifi
Instruction No. 6, which told the jury the defendant could not justify the killing if he had brought on or begun the difficulty, although with no intent to kill or do bodily injury to the deceased, should have been refused. A man does not lose his right of self-defense unless he has done some wrongful act. Mere innocent or accidental cause of difficulty or combat, permitted by this instruction, is not enough. 1 Hawk. P. C. 82; Hor. & Thomp. Self-Def. 220; 25 Am. & Eng. Ency. 268; Foutch v. State, 95 Tenn. 711; Fussell v. State, 94 Ga. 78.
Instruction No. 17 reads as follows: “If the jury believe from the evidence, that at the time of the alleged killing, the defendant and the deceased met, and upon a sudden cause of quarrel arising between them, mutually agreed to engage in a personal combat, and did so engage in such combat, and if the jury further believe from the evidence, beyond a reasonable doubt, that during such quarrel the defendant, without the knowledge of the deceased, made use of a deadly weapon, in such manner as would be likely to cause the death of the deceased, and did so cause it, then the defendant was. guilty of murder; and if the jury further believe, from the evidence, that the defendant so used the said deadly weapon, deliberately and with malice aforethought, and with intent to. take the life of the deceased, or to do him great bodily harm, then such killing would be murder in the first degree.” The first proposition embodied in it is incorrect. The mere making use of a deadly weapon, under the circumstances, does not. necessarily constitute second degree murder. That crime is unintentional malicious killing. State v. Morrison, 49 W. Va. 210. Unlawful cutting with intent, not to kill, but only to injure, resulting in death, would constitute the crime. But the facts assumed in the hypothesis, put by the first clause of the instruction, do not preclude theXjury from finding that
Omission of an essential clause or qualification from instruction No. 26 makes it erroneous. By it the jury were.
Several instructions are excepted to because they declare the usual presumption of guilt arising from facts established, such as that a killing, without any, or upon slight, provocation, with a deadly weapon, unexplained, is presumed to be murder of the first degree, and that a man is presumed to intend that which he does or which is the probable result of his acts, and we are asked to overrule numerous cases in which this practice has been approved. In this connection, it is urged that the trial court, in requiring the jury to apply these rules, trespasses upon its province, because, first, in every such instance, material and controlling- facts are assumed to the prejudice of the prisoner, and, second, because such instructions bear upon the weight of the evidence. .
Both of these positions are clearly untenable and wholly unsupported by any authority. The propriety of an instruction always depends upon the evidence in the case. No proposition of law can be announced to the jury as applicable to a case, unless there is evidence tending to support every fact that must be found by the jury in order to make it applicable. A proper instruction never assumes the existence of facts, but it does assume that there is in the case evidence of certain facts. As the facts are generally disputed, the evidence of the plaintiff tends to prove one set, relevant :and material to the issue, and that of the defendant another, and it sometimes happens that there are several issues so that the contentions as to facts, supported by evidence, are numerous, giving scope for several instructions, embodying different propositions of law. When the jury have ascertained the facts, they apply that 'principle of law which the court
We think it equally apparent that the statement of these rules of evidence do not affect the weight of the evidence. In every instance they are hypothetical statements or are founded upon admitted facts, such as that the prisoner killed the deceased with a deadly weapon, without any, or upon slight, provocation. Is it to be supposed that a jury is so utterly ignorant as not to be able to see which, if any, of the facts, constituting the offense described, are in controversy, and that the application of the principle depends upon their findings as to facts? If the facts are not controverted, there can be no possible impropriety in stating the law applicable to them, because there is nothing to try. The law is for the court, the facts only for the jury. When killing by the prisoner is shown, a prwna facie case of guilt is made out by the state. What possible harm can there be in saying so to the jury? How can it be said the instruction is an expression of opinion as to the weight of the evidence? Up to this point there is no conflict in the evidence, and, hence, no function of weighing to be performed, for a verdict contrary to the case so made would be palpably wrong. lyhat constitutes an offense is matter of law, and if the facts in the concrete case, up to a certain point, be admitted, or be not in controversy, the court may, without the slightest impropriety, tell the jury what their verdict should be, if the case is not altered by evidence adduced to establish additional facts, calling for dif
Instruction No. 11 reads as follows: “The rule of law is that a man shall be taken to intend that which he does, or which is the necessary consequence of his act.” This was condemned in State v. Sheppard, 49 W. Va. 582. Such intention is not absolutely imputed by the law. It is only presumed and the presumption may be overcome. Instructions.
The action of the court in permitting Mrs. Furr to testify as to the meaning of a certain statement, made by her to Hite, on the morning of the day following the homicide, is excepted to. Of this, the prisoner cannot be heard to complain, because that conversation was by him introduced for the purpose of affecting the evidence of Hite. He cannot bring it into the case for one purpose and put it out for all others, nor can he have the benefit of it except in the form in which it actually occurred, and according to its meaning and intent.
Another assignment of error is based upon the action of the court, in excluding three questions and the answers thereto, in the deposition of Clara Beall, taken on behalf of the accused. They were as follows:
“Q. Did you hear Okey Taylor, after he had been knocked down by Furr, ask Furr to take his horse off of him?
A. I did.
Q. State whether or not before Taylor was knocked down, Furr turned his horse and came back towards him?
A. He did.
Q. State whether or not at the time of this trouble, Okey Taylor was near a pair of bars ?
A. He was.”
The depositions showed objection to them at the time of the taking thereof, because of the form in which the questions were propounded. A question, containing the words, “whether or not, so as, in most instances, to prevent the use of the words “yes” or “no,” in answer, is said to be, ordinarily, not leading. State v. Henderson, 29 W. Va. 147; Wills v. Quimby, 31 N. H. 485, 490. Whether it is or not depends upon the nature of the question, the subject matter
For the reasons above given, the verdict ought to have been set aside and a new tidal allowed. Therefore the judgment Avill be reversed, the verdict set aside and the case remanded for a neiv trial.
Reversed.
I do not think instruction 6 bad. No innocent or accidental cause of incitement to combat is suggested by the evidence. I see no fault in No. 11.