71 W. Va. 1 | W. Va. | 1912
Lead Opinion
On an indictment for the murder of Ben Tate defendant was acquitted of murder in the first degree, but found guilty of murder in the second degree, and the judgment below was that he be confined in the penitentiary for the period of ten years.
The homicide, admitted, occurred on the night of January — , 1910, a Sunday night, in a brothel in Keystone, McDowell County. Defendant was a deputy United States Marshal, who at the request of White, town sergeant, had gone with him to this house to make an arrest for alleged illicit sales of intoxicating liquors. While waiting the return of White from the Mayor’s office with warrants, 'defendant, who before White left to secure the warrants, had been invited on the outside of the house by
Defendant was the only living witness as to what actually took place in the room where the homicide occurred. He admitted the killing, but on his trial relied on self defense.
The controversy here is reduced to a few questions relating to the rejection of certain evidence proposed by the prisoner, and to the giving and rejecting of certain instructions to the jury.
First, as to the rejected evidence. On the trial, the prisoner, to establish his theory of self defense, was permitted to and did prove by the testimony of White that after he and White entered the house, and asked for the girl Blackburn, reported to have sold the liquor to Walter Waldron and Trivitts, Madge Murray, the mistress of the house, came out of her room and inquired of them, “Why do you all have me charged with selling whiskey' and beer to-day ?” and that another woman, Jennie Belcher, interposing said: “Make them show you a United States warrant before you go”; that the Murray woman then walked to a bed in the room, and to where, as he supposed, Tate was -sitting on a chair, and sat down on his lap, and said to him: “ 'Sweetheart, you are not going to let them take me, are you ?’ or something like that; and he said: — 'Ho, not as long as we are here’, and he raised up and pushed her off of his lap.” This witness also says, that when Tate got up he'walked around to the foot of the bed and stopped, and that witness said to him, we won’t have any trouble, we will get a warrant, that he would go down and see Hale, the mayor, and get him up there and pull the whole house; that Waldron and he then walked out in the dance hall, where he wrote a note, proposing to send Waldron for the warrants, but after writing it concluded to go himself, as he thought he could find the mayor quicker. Continuing this witness says: “Then Mr. Tate walked around on this side, and Gillespie on this side (indicating), and touched him (Waldron) on the shoulder, and said he wanted to see him on the outside. He told him that if they wanted to see him, see him in here, and
As to what occurred immediately afterwards, Waldron further swears, and no fact or witness materially contradicts him: “As soon as Mr. White left they all went over to Madge’s room and left me alone in the dance hall. I was standing there and in a short time two fellows came out of Madge’s room and come up to me and the big fellow says: ‘Coroe over in the room where you can sit down; its no use standing up’, and pointed to the room right out across the little hall. There was a light in there and I just walked over, followed him. ITe walked right on in. I was behind him. I heard the door .shut, and just turned my head that way (indicating) and the smallest one had his back to the door and this big fellow struck me. ******* He knocked me down, I guess, the time he struck me. They both jumped on me and I caught on to the bed the best I could on it, then pulled myself up the best I could, trying to get my gun out all the time, shoved myself away from them,” when he shot him, thinking he was in danger of being killed, or having great bodily harm done to him, his only reason for shooting.
In connection with this testimony and as further tending to show Tate and Gillespie were the aggressors, and establish his theory of self defense, the prisoner proposed, but was not permitted to prove, by two witnesses, Baxter and Hermanson, that but a few moments before the homicide, both Tate and Gillespie, in connection with two or three other men, were in a violent state of mind towards Hermanson; that but a few moments before White and Waldron entered the house Tate and Gillespie, as Baxter thought from their actions, acting under the influence of liquor, jumped on Hermanson, in aid of their lewd mistresses, and without other cause, beat him, while Hermanson was there waiting for two other women to come down stairs and pay him some money he claimed they owed him.
The attorney general and associate counsel justify the action of the court in excluding this evidence, not on the ground that it might not have influenced the verdict of the jury, but on the grounds, (a) that -evidence of a single act of violence is not ad
In homicide cases, where the general character of the deceased for turbulence and violence is involved, the general rule, established by the weight of authority, no doubt is, that evidence of isolated facts or specific acts forming no part of the res gestae, and in no way connected with defendant, will not be received in evidence. 21 Cyc. 910, and cases cited in notes. But when self defense is relied on, and whereas in this case, there is evidence tending to show the deceased was the aggressor, the dangerous character of deceased may be shown by the facts and circumstances attending the homicide, and so connected with it as to constitute a part of the res gestae. 21 Cyc. 909; 1 Wigmore on Ev., section 363; State v. Morrison, 49 W. Va. 210, 218; Harrison v. Com., 79 Ara. 374. Moreover, Mr. Wigmore, 1 Wigmore on Ev. section 198, citing numerous cases, says: “When the turbulent character of the deceased, in a prosecution for homicide, is relevant (under the principle of § 63, ante), there is no substantial reason against evidencing the character by particular instances of violent or quarrelsome conduct. Such instances may be very significant; their number can be controlled by the trial Court’s discretion; and the prohibitory considerations applicable to an accused’s character, (ante § 194) have here little or no force.” And whether in such cases as the one at bar there is necessity of showing defendant’s knowledge of deceased’s character, this writer, in § 63, referred to, says: “The reason for the hesitation, once observable in many Courts, in recognizing this sort of evidence, and the source of much confusion upon the subject, was the frequent failure to distinguish this use of the deceased’s character from another use, perfectly well-settled, but subject to a peculiar limitation not here necessary, — the use of communicated character to show the fact and the reasonableness of the defendant’s ap
The application of this distinction, so often overlooked, and so clearly stated by Mr. Wigmore, we think well recognized by other writers, and in some leading cases, now to be referred to. In 6 Ency. of Ev. 783, the rule we approve is stated thus: “The violent conduct of the deceased shortly preceding the homicide, though in the absence of and unknown to the accused, is admissible to show his condition of mind and characterize his conduct during the fatal ‘difficulty and by some courts is regarded as part of the res gestaeWe do not think the rule of res gestae should be so limited in its scope as counsel for the State would limit it. "We find the rule applicable in homicide cases thus comprehensively stated in 21 Cyc. 924: “The res gestae in cases of homicide are the surrounding facts of the transaction, explanatory of the act, showing motive for acting, pr standing in a causal relation to the crime. The res gestae consist of circumstances or declarations made admissible in evidence by reason of their connection with the particular fact under investigation, and the test is, whether the fact or circumstance put in evidence is so connected with the main fact under consideration as to illustrate its character, to further its object, or to form in conjunction with it one continuous transaction. They are proper to be submitted to the jury provided they can be established by competent means, sanctioned by the law, and afford any fair presumption or inference as to the question in dispute.”
In People v. Lilly, 38 Mich. 270, the deceased’s behaviour on
Many other cases cited in support of this rule, state and federal, fully support our view. In our case of State v. Sheppard, 49 W. Va. 594, it is said: “All acts and conduct of the deceased previous to the fatal encounter may be shown in evidence, which form a part of the res gestae, or which in any manner tend to shed light upon the question of motive or malice, or of legal provocation, or upon the question whether the defendant committed the homicide.” And in Maher v. People, 81 Am. Dec. 781, 789, it is said: “Ho other cause being shown for the assault, the proposed evidence, if given, could have left no reasonable doubt that it was, in fact, committed in consequence of the alleged provocation, whether sufficient or not; and all the facts constituting the provocation, or which led to the assault, being thus closely connected, and following each other in quick succession, and the assault itself in which they resulted, constituted together but one entire transaction. The circumstances which, in fact, led to the assault, were a part of the res gestae, which the jury were entitled to have before them to show what was the real nature of the act, the quo animo, state of mind, and intention with which it was done.” In State v. Bright, (S. C.) 71 S. E. 821, the first point of the syllabus is: “Acts of decedent done immediately before the homicide to show his mental attitude are admissible on the issue of self-defense.” And in McAnear v. State (Tex.), 67 S. W. 117-119, that Court says: “We know of no rule of law authorizing the exclusion of any evidence that
It seems quite unnatural and contrary to human experience that a public officer,' circumstanced as Waldron was, and so far as the evidence discloses, with no apparent motive other than self defense, or in the heat of passion due to some sudden affray, should have shot down two men. If the former and justifiable, no crime was committed; if the latter, the crime was manslaughter, not murder in the second degree.
On the record now presented we think the evidence of Her-manson and Baxter, excluded, should have been admitted, and that the court below erred in rejecting it, entitling the prisoner to a new trial.
The point is made, that as the prisoner admitted the killing, and as the law presumes all murder to be murder in the second degree, putting the burden of showing justifiable homicide on defendant, if the excluded evidence had been admitted, in connection with all the other evidence, the presumption of guilt would not have been overcome thereby. In answer we may-say that there is always a presumption of malice from the use of a deadly weapon; but this rule is applicable only when nothing is offered in explanation, such as self defense and the like. 2 Chamber]ayne Mod. Law of Ev., section 1155, citing among other cases, in note, our case of State v. Clark, 51 W. Va. 457. An'd “the fact that the alleged self-defense was effected by the use of a greatly superior weapon is by no means conclusive of malice.” People v. Barry, 31 Cal. 357, cited in same note. In Perkins v. State, (Ga.) 52 S E. 17, it is held that if the accused offers evidence explanatory of the homicide admitted, no presumption of malice arises. The latter proposition, however, according to our cases, would not preclude an instruction on the presumption of murder, the homicide being proven.
Finally, as to the instructions. Exceptions were taken to the giving of all of the State’s instructions, and to the rejection of certain of the defendant’s instructions. We have considered all these exceptions; but find little merit in any of them. Most of them propound legal principles, applicable to the evidence,many times ruled upon, and we will not undertake to discuss any of them except State’s instructions numbered one and three, given, and defendant’s' instruction numbered five, rejected.
An additional criticism of State’s instruction number three is, that it tells the jury that the law of self defense is the law of necessity, not limiting it, as in State’s instruction number twelve, given, to apparent necessity. But this instruction does not stop with this general declaration of principle. It precedes a' statement of the law of self defense, which tells the jury that unless the prisoner acted on the honest belief that it was then and there necessary to take the life of deceased in order to save his own life, or 'free himself from some great bodily harm, he was not justified therein, and that if the jury believed that defendant, though previously assaulted, used more force than was reasonably necessary to repel the assault, or shot or continued to shoot after the necessity fqr so doing had ceased, they could not acquit him. We see nothing in this statement of the law prejudicial to defendant. The instruction as a whole practically limits the law of necessity to apparent necessity, and read in connection with State’s instruction number twelve the jury could not possibly have been mislead by it.
Lastly as to defendant’s instruction number five, rejected. This instruction reads: “The Court instructs the jury that where there is more than one assailant, the slayer has the right to act upon the hostile demonstration of either one or all of them, .and to kill either one or both of them, if it reasonably appears to him that they are present for the purpose and acting together to take his life or do him some serious bodily injury.”
This instruction -was approved in Carson v. State (Tex.), 136 Am. St. Rep. 981, and the proposition approved in Wharton on Horn. 396, and cases cited by him, and we think states a correct legal proposition. But we do not think the prisoner was pre
For the error in rejecting the evidence of Hermanson and Baxter we are of opinion to reverse the judgment below and .grant the prisoner a new trial, as already ordered.
Reversed and New Trial Graniedi.
Dissenting Opinion
(dissenting):
In order that one may have a clearer understanding of the ■error, found by the majority of the Court, it is necessary to state more fully than it is stated in the opinion, not only the undisputed facts connected with and surrounding the homicide, but also to state more fully the rejected evidence. One can then see more clearly the relative importance which the opinion gives to the excluded testimony, and will be better prepared to judge of its value as a precedent.
Defendant’s presence at Madge Murray’s is thus explained by ■the evidence. It was reported to him that whiskey was being •unlawfully sold at her house; and he procured his brother to go there and see if he could buy some whiskey; his brother took with him one Bob Trivetts, went to the house, and bought a half pint of whiskey from one “of the inmates by the name of Flor•ence Blackburn; and, about dark on the day of the homicide, informed defendant of the fact. Without procuring a warrant for her arrest, defendant and W. M. White, chief of police of Keystone, went there to arrest Florence Blackburn, and were told by a number of the inmates that there was no girl of that mame there. Defendant says he went to the house without a warrant, at the suggestion of the chief of police who said he would hold them until defendant could get United States warrants. Defendant’s brother was not with him, and he was not able to ■identify the girl. Some of the witnesses testify that he remarked, that if he could not ñnd Florence Blackburn, he would arrest all that were in the house. After writing a note to the mayor, -with the view of sending defendant with it to procure warrants, White decided to go himself, giving as his reason that he knew 'better where to find the mayor than defendant did; and left defendant on guard. Before he returned the tragedy was enacted,
Without usurping the function of the jury, to pass upon the-weight of conflicting oral testimony, the Court is not warranted by the record to say, as it has done in its opinion, that defendant was “enticed” into th'e room by the two men; and that the door was shut “by one of them.” That defendant was enticed to enter the room, by the simple invitation which I have quoted from his own testimony, is certainly not to be inferred from the-language used; whether or not deceased intended to entice defendant into a secret place for an evil purpose, was a question which only the jury could determine, and their verdict would seem to indicate that they did not so interpret the invitation. And the other question, who shut the door after the three men had gone into the room, is a disputed fact. Rose Coleman says; defendant shut it himself, and in doing so masheid her finger.
Defendant says he shot in self-'defense; that when the door-closed -he turned his head, and Tate, who had entered the room in front of him, struck him and knocked him to his knees and dazed him; that both of the men jumped on him and commenced beating him; that he caught hold of the bed and pulled himself up, pushed away from them, pulled out his pistol and began shooting, and shot five times. But, after hearing defendant’s answers to questions on cross-examination, the jury evidently did not believe his story. Prom the statements in the opinion, to which I have alluded, and the mention therein made of the failure of the state to prove any motive for the killing, and the importance which the opinion gives to such failure, it is apparent that the majority of the Court have been strongly influenced by
I do not think the reasons assigned for reversing this case are sound; and I am convinced, by a careful inspection of the record, that the question of defendant’s guilt or innocence was one of fact for the jury, and that it was not error to exclude the testimony of Baxter and Hermanson. The homicide with a deadly weapon having been proven, and admitted, a case of murder in the second degree 'was established. Motive, other than malice, which may be inferred from the use of the deadly weapon, is no element of the crime; and the state was not required to show a motive, other than legal malice. But defendant pleaded self-defense as the motive; and it was incumbent on him to prove it to the satisfaction of the j ary, not to the .satisfaction of the court. Cross-examination of a witness is the best test known to the law for ascertaining the truth of his testimony. The cross-examination of accused covers about twenty pages of the printed record; and a perusal of it will convince any impartial reader that the jury were justified in not believing his account of the homicide. I here give a few extracts' from it which are fair samples of its character throughout, viz: “Q. You say that Tate struck you and knocked you down? A. Yes sir; he knocked me to my knees. Q. Where did he strike you? A. Right on my forehead here (indicating). Q. What did he strike you with? A. I don’t know.” * * * * “Q. Where was Tate standing while you were shooting ? A. He was beating me all of the time, I guess. Q. On which .side of you? A. I don’t remember. Q. Where was Gillespie standing while you were shooting ? A. They were both beating me all of the time from the time he struck the first lick.- Q. Were they beating you while you were shooting? A. Yes sir. Q. "When you raised up didn’t you shove yourself back from the bed? A. Yes sir. Q. When you shoved yourself back from the bed, didn’t you shove yourself away from them? A. I don’t remember. Q. When you shoved yourself back from the b'ed then you don’t remember whether you were away from them or not? A. Ho sir. Q. It was when you shoved yourself back from the bed that you commenced shooting? A. I suppose so. Q. When you commenced shoot
The undisputed facts are that neither Tate nor Gillespie was armed with any kind of weapon, and both were in their shirt sleeves; that defendant was armed with two No. 38 Smith & Wesson revolvers; that he did not know either Tate or Gillespie, and had not heard of the Hermanson difficulty; that he fired five shots, every one of which struck the body of one or the other of his victims, Tate’s body having two bullet wounds, one of which entered the back, and Gillespie’s body having three, one of which entered the back of his neck, that several minutes after the shooting defendant came out of the room, closed the door and left the building before it was known by any of the inmates that a homicide had been committed; that the furniture in the room was found to be in orderly arrangement, indicating that no scuffle had taken place; that defendant had a small abrasion on his forehead, “just a little scratch just about an inch long,” sa3rs Dr. S. A. Daniel who examined it shortly afterwards, and thought it could not have been caused either by a man’s fist, or by a certain poker that was found in the room and exhibited to him.
Dor the purpose of proving that deceased was the aggressor, defendant offered to prove by P. J. Baxter and Sam Hermanson, that deceased had a difficulty with said Hermanson in the house a short time before defendant and White came. The Court refused to admit the evident; and for that cause the judgment is reversed. The rejected testimony, is, in substance, as follows : Baxter was asked if Ben Tate was drinking, and he said he thought he was, and gave as his reason that he saw him in a fight; he said he did not think that “three or four sober men would get on one man”. But he admitted that he did not see Tate staggering, and did not smell whiskey on his breath; that
I respectfully submit that this testimony has no causal relation to the homicide; that it reflects no light upon it whatever, and is, therefore, no part of the res gestae. Again, I insist lb at it does not prove, or even tend to prove, either that Tate was a man of quarrelsome and bellicose temper, or that he was in a violent state of mind at the time of the homicide. The testimony does not prove that Tate attempted to do an}' violence to Hermanson, or that he was even in fault. According to Baxter’s testimony there were three or four men on Her-manson; but who the other two were, besides the two that were killed, or whether they were dressed in buckram suits or not, or whether all were trying to do violence to Hermanson, or whether some of them, including Tate, were simply trying to prevent Hermanson from doing violence to some one else, does not appear. And, according to Hermanson’s testimony, Tate was not one of the many men that he says were on him; and it is very reasonable to suppose that he, knowing Tate personally and being the person most seriously affected by the fray, would know it, if he had been one of them. But, even if the testimony showed that Tate was in a violent frame of mind at the time of tire Hermanson difficulty, which I insist it does not show, still there was ample time for his anger to cool before defendant came to the house. neither does it follow that, because a man is angered toward one man, he will attempt vengeance upon a stranger.
Moreover, I deny that the rules of evidence admit proof of a single isolated difficulty between deceased and a third person, when unknown to the accused, as evidence of violent character. See, on this subject, the following authorities: Underhill Crim. Evi., sec. 325; State v. Roderick, 77 O. St. 301; 82 N. E. 1082, and numerous cases cited in the note to this case reported in 14 L. R. A. (N. S.) 708. See particularly the following cases: State v. Elkins, 63 Mo. 159; State v. Ronk, 91 Minn, 419, 98 N. W. 334; State v. Mims, 36 Ore. 315, 61 Pac. 888; State v. Andrews, 73 S. C. 257, 53 S. E. 423; People v. Gaimari, 176 N. Y. 84; Hardgraves v. State, 88 Ark. 261; Harrison v. Commonwealth, 79 Va. 374; Sturgeon v. Commonwealth, (Ky.) 102 S. W. 812; Warrick v. State, 125 Ga. 133
In Beard v. Insurance Co., 65 W. Va. 283, we held that, where it was sought to establish the fact that, at the time of insured’s death, he was intoxicated, evidence was inadmissible to prove a single intoxication at another time, because a single act does not tend to prove character, or habit. The application of the rule in the two cases is the same. If the habit of drunkenness can not be proven by a single act of intoxication, no more can a single difficulty prove, general character for violence.
The best proof of character is general reputation; and defendant made no attempt to prove the character of deceased in that way, and presents no excuse for not doing so. I am convinced by the record that defendant had a fair and impartial trial. Whether or not he is guilty of the crime of which he was convicted is not for me to say; but I can, with perfect propriety, say that there is ample evidence, disclosed in the record, to support the verdict; and human experience and observation teach us that juries always resolve their doubts in favor of the accused, and that, when they do err at all, they usually err on the side of mercy. They were the judges of the value of defendant’s testimony; they saw him face to face, observed his countenance and heard his words; and they evidently refused to
The opinion lays stress upon the fact that no motive is shown for the killing. I have answered this, but still I admit that it seems unnatural that'one man should slay another for no cause whatever. But the jury only can judge the motive. They have said that it was not self preservation; it follows that they believed it was malicious. It is useless for me to speculate upon what the jury might have thought, for it was their-consciences that had.to be satisfied. However, I will mention one or two causes that the evidence might have suggested to their minds. It will be remembered that defendant was left to guard the house while White went for the warrants; and there is also testimony that defendant said that, if he did not find Florence Blackburn, he would arrest all that were in the house. The nury may have thought that defendant himself closed the- door t» the room, and undertook to guard the men in there, and' that they attempted to escape, and were shot; or, they may have believed that a quarrel arose, and defendant shot because he was angered, perhaps on account of what he conceived to be an improper interference with him in the exercise of his official duty.
I think the testimony of Baxter and Hermanson was properly excluded. Rules of evidence are founded on reason and human experience, and are intended to aid courts and juries in arriving at the truth and justice of a case. Such rules are generally established by the courts; few of them have their origin in legislative enactment. I admit that some courts have, in recent years, gone to very great length, in mufder trials, in admitting proof of difficulties between the deceased and third persons, as
It is a fundamental rule of evidence that a fact should be proven by the best evidence, when possible to do so; and the best proof of character is proof of reputation. Why then should not one on trial for murder, who wishes to prove the violent character of deceased, be required to do so by proving his general reputation for violence, when he can do so? That is the best method of proving character, and so recognized by all the courts. Why should not the rule be adhered to? Why have some of the courts departed from it in trials for homicide? Defendant did not offer to prove the character of Tate by general reputation.
I quote the following from the report of the Committee on Judicial Administration and Legal Reforms, adopted by the West Virginia Bar Association, at its annual meeting held at Grafton this year, on the question, whether or not the death pen
And, to show the impression 'made upon the legally trained mind of a highly cultured and closely observant Englishman, after sojourning for sometime in the United States, and witnessing the way in which justice is administered in the courts of the various states, and comparing it with the administration of justice by the courts of his own country. I quote the following from James Bryce’s “American Commonwealth”; in his chapter on “State Judiciary”, page 204, viz: “All crimes, except such as are punishable under some Federal statute, are justifiable by the state court; and it is worth remembering that in most States there exists much wider facilities for setting aside the verdict of a jury finding a prisoner guilty, by raising all sorts of points of law, than are permitted by the law and practice of England. Such facilities have been and are abused, to the great detriment of the community.”