52 W. Va. 420 | W. Va. | 1903
Thomas Tucker was convicted in the criminal court of Wood County upon indictment for the murder of Mary Beall, alias Mary Bell, alias Mary Ilelmick, on the-day of January, 1902. Defendant applied to the circuit court of Wood County for a writ of error, which was refused on the 16th day of May, 1902. He then applied to, and obtained from one of the judges of this Court, a writ of error and supersedeas to the execution of the judgment rendered by the said criminal court. In the course of the trial the defendant, by counsel, took seven separate bills
It is insisted by counsel for plaintiff in error that because it does not appear what occurred between the deceased and the defendant from the time they left the house to go up the street until his return that he is entitled to the presumption that the murder was of the second degree. The jury had before it his acts and declarations immediately after the commission of the crime and theré is no intimation from him in any way of any provocation to induce the act. He says, “I killed her because I loved her.” He certainly had a very emphatic way of expressing his love. He returned to the house with the razor in his hand, evidently the weapon with which he committed the deed, and had made one cut therewith at his own throat, but it seems that his courage failed him and he did not complete the work upon himself. As to whether the evidence and circumstances are sufficient to overcome the presumption that it was murder in the second degree is purely a question for the jury and they are the judges of the weight of the evidence. The affidavits mentioned in thé bill of exceptions Ho. 1, in regard to after discovered testimony refer to the fact that while Tucker was in the house soon after the commission of the 'crime and in custod}*, he asked for a pen or pencil, stating that he wanted to write a letter to his brother. Carter sajes he handed him a pencil, then Tucker said he did not want a pencil but he wanted a pen; that Carter then got him a pen and with the pen and ink which was on
The second assignment of error as set out in bill of exceptions No. 2, is, that after the verdict of the jury had been rendered the defendant in error moved the court to correct its record of January 30th, according to the facts; that the prisoner pleaded to said indictment by counsel and not in person and offered in support of his motion the affidavits of the defendant, his attorney, W. F. Smith, John F. Laird and W. E. McDouglc. Which affidavits being objected to, the court refused to permit them to be hied and refused to make a change in the record, which shows that the defendant, “Thomas Tucker who stands indicted for felony was this day set to the bar in custody oí flic jailer of Wood County, thereupon said prisoner for plea says be is not guilty as in the indictment against him is alleged, and of this he puts himself upon the country and the prosecuting attorney doth the like-and issue thereon is joined.” There is no dispute about the fact the defendant was present in person in court when the plea of not guilty was entered. The plea was entered in open court in the presence of the court-and the order entered up showing the entry of the plea and the presnee of the defendant and it was the duty of the court to see that its orders were properly entered, and it is very improbable that he would accept a plea of not guilty from the attorney. When the indictment is read to the prisoner the question is put to him personally, “What say you, guilty, or not guilty.” There is no mention in the order of any motion to quash the indictment, in connection with the entry of the plea which defendant’s counsel insists that he made. The plea was entered on the 30th of January, and no motion was made to correct the record or to call in question its correctness until the 14th day of March after
'The third assignment of error as set out in bill of exceptions No. 3, is that after the court had overruled the motion to grant a new trial on the ground that the verdict was contrary to the law and the evidence, and had refused to correct the record and the defendant moved the court in arrest of judgment on the ground that the grand jury, which found the indictment was not legally and properly empaneled and sworn, and for other errors apparent on the record, which motion was also overruled and excepted to. The office of a bill of exceptions is to call the attention of the court to some specific matter as to which error is claimed. 11 Cyc. 714, and in 3 B'nc. PI. & Pr. 409. “The duty rests upon the appellant or party claiming to have been prejudiced to prove the alleged error, he must, when he relies upon the bill of exceptions, show by means of it the error complained of clearly and affirmatively; and he must further show in order to have relief, that such error was prejudicial.” The bill of exceptions relied upon moved the court in arrest of judgment on the ground1 that the grand jury which found the indictment in this case was not legally and properly empaneled and sworn. It fails to point out in what respect the empaneling of the grand jury was illegal or irregular. The record shows: “On January 27, 1902, W. Vrooman, gentleman, foreman, this day appointed as such by the court and J. R. Reynolds (and fourteen others naming them), were empaneled and sworn a grand jury of inquest in and for the body of the county of Wood, and having been charged were sent to their room to consider of the business before them.” The empaneling of the grand jury seems to have been regular and the bill of exceptions fails to point out any particular irregularity therein. In the absence of anything showing to the contrary the presumption is that the proceedings in summoning the grand jury were regular. It is insisted by defendant that under his motion in
The fourth assignment of error as set out in bill of exceptions No. 4, overruling defendant’s objections to the nine instructions given for the State. The first instruction given for the State is taken from Mayo’s Guide, 347, 348, defining murder and what it takes to constitute it, and correctly propounds the law.
The second instruction given for the State set out in this bill of exceptions is as follows: “The court instructs the jury that to convict one of murder it is not necessary that malice should exist in the heart of the accused against the deceased. If the jury believe from the evidence that the prisoner was guilty of cutting, with a deadly weapon, the deceased, and of killing her, the intent, the malice and the wilfulness, deliberation and premeditation may be inferred from the act, and such malice may not be directed against any particular person, but such as shows a heart regardless of social duty and fatally bent on mischief.” This instruction seems to have-been prepared from the first instruction given in case of State v. Welch, 36 W. Va. 690. It is there said by Judge Bea^non in delivering the opinion of the court: “The first sentence of this instruction propounds the law correctly; the latter part of it after the word ‘act’ also lays down the law; but that portion which says ‘if the accused was guilty of striking with a deadly weapon another and of killing him, the intent, the malice and wilfulness, deliberation and premeditation may be inferred from the act, is not the law. This instruction was taken from the first syllabus of the Douglas Case, 28 W. Va. 297, but inserts the words, ‘wilfulness, deliberation and premeditation.’ In the Douglas Case there was a verdict of murder in the second degree, and the syllabus referred to makes out a case of murder in that degree.” The instruction is in tho Welch Case discussed at length, and after giving the circumstances of the case the Court concludes that there was no error in giving the instruction. It is further said in that opinion, “These being the circumstances, was it error, in law, to tell the jury they might find the presence of wilfulness, deliberation and premeditation from the use of a deadly weapon? If ¡there be a homicide, and it be with a deadly weapon, and the jury should find it to bo'murder in the first
It cannot be said from the evidence in this case that the verdict of the jury was not sustained. We have the repeated voluntary confession or statements of the defendant who returned to the house with the bloody razor in his hand within twenty minutes after he and the deceased had left together, and win blood upon his clothes, that he had killed Mary Bell; that he killed her because he loved her; that he had killed her and ought to go to hell, ana wanted to kill himself, but at no time intimated that she had given him even slight provocation for the act.
The third instruction mentioned in the bill' of exceptions is to the effect that if the jury believes from the evidence that the defendant, with a deadly weapon in his possession, without any or upon slight provocation gave the deceased a mortal wound from which she died the defendant was prima facie guilty of wilful, deliberate and premeditated killing and the necessity of showing extenuating circumstances rested upon the defendant, or they must appear from the case made b]*- the State, otherwise he was guilty of murder in the first degree, although no motive for the crime was disclosed or any ill feeling shown to have existed between the parties. This is substantially the instruction given in the Welch Gase before cited, and there held to be good;
The fourth instruction is to the effect that no particular period is necessary that malice should have existed or that a person should have contemplated.homicide in order to constitute murder, and if the intent to kill is executed, the instant that it springs into mind the offense is as truly murder as if it had dwelt there for a longer period, and the sixth instruction is to the same effect and held to be good law in the Welch Case. The fifth instruction is to the same effect as the third.
The seventh instruction is “That the question of whether or not a particular weapon or instrument is deadly is one of law for the court and further that a razor, such as shown in the evidence, given to the jury is a dealy weapon.” The first part of this instruction I regard too Broad as a general proposition of law; yet the authorities differ on this, see sec. 320; Bishop on Statutory Crimes, (3d ed,), which rather supports the'instruction, but the cases there cited are not all in record with it. But in any event it is rendered utterly harmless to prejudice the defendant, by the last part of the instruction which applies it to the weapon shown in the evidence to have been with which the crime was committed.
Instruction Ho. 8 is based upon substantially the same as point three in syllabus in Robinson’s Case, 20 W. Va. 713. Instruction Ho. 9 is substantially to the same effect as Ho. 8. Instruction Ho. 10 relates to what constitutes under the law, a reasonable doubt and is sufficient; and after giving the instructions asked by State and the defendant the court instructed the jury that if they “believed from the evidence that the accused was intoxicated at the time of the killing,’ such evidence is competent for the consideration, of the jury upon the question whether the accused was . in such a condition of mind as to be capable of deliberation and premeditation.”
The fifth assignment of error as set out in bill of exceptions Ho. 5, is to the ruling of the court on permitting the witness for the State, W. A. gmith, on being recalled, to be asked the question by the State, “I want to ask you, after you left the house whether you heard any remarks of the defendant here on your way to jail,” and was answered, “Yes sir, I forgot that when I was on before. After we had started to jail with him he got
This witness was recalled before the State had closed its evidence-in-chief, to supply an omission, and was not improper, it was a matter for the exercise of a sound discretion of the court. Hassil's Case, 5th Grat 664.
The sixth assignment of error as set out in bill of exceptions No. 6 is an objection to the evidence of witness for the State, E. L. Landsittle, being asked whether he knew Thomas Tucker, defendant, how long he had known, him and whether he was acquainted with his habits and disposition and what he had noticed about him.? He answered that he had known him about five years, and was asked “What was his character as you observed it in regard to being quarrelsome or peaceable?” A. “Well I have noticed when he was drinking a little he was naturally quarrelsome.” This testimony was given in rebuttal, the defendant having offered proof in relation to his character and disposition, and was not improper.
The seventh assignment of error as set forth in the seventh bill of exceptions, exceptions were taken in the examination of witness J. L. Drankling where he was asked: “Q. When Tom first came home did you notice any blood on him ? A. He had a little blood on his hand and on his cuff. Q. Did you notice anything in his hand? A. He had a razor. Q. Look at the razor now shown you and see if that is the same razor. A. I think that is the same razor. Q. Just show it to the jury.” And the razor was shown to the jury and inspected by them. The defendant objected and excepted thereto. The razor was identified by the witness as the same brought home by the defendant in a few minutes after the killing. It was also identified by witness, Dr. W. S. Keevor. The razor was properly shown to the jury. The weapon or instrument by the use of which a homicide or other felony is committed, when the same can be identified, is invariably exhibited to the jury. The only
I can understand why counsel for a defendant in case of murder or other felony should seek to have the court instruct the jury on all conceivable points, in the hope, perhaps, of having the court in the hurry and possible confusion of business refuse a proper instruction, thereby laying a foundation for a new trial for his client; but why a prosecuting attorney should incumber the record with innumerable instructions to the jury, often endangering, with doubtful instructions a case otherwise so plain that a jury could scarcely err, is to me an enigma; under our system of constituting juries, the average jury should be presumed to have at least a reasonable degree of intelligence and fitness for the responsible duties imposed upon them by the law.
There is no reversible error shown in the record and the judgment must be affirmed.
Affirmed.