92 W. Va. 499 | W. Va. | 1922
Charley Walker was convicted of murder in the second degree in the intermediate court of Kanawha County, on February 16, 1921, and sentenced to confinement in the penitentiary for eighteen years. He petitioned the circuit court for a writ of error, which was refused, and he prosecutes this writ.
Defendant is a negro, and was indicted, tried and convicted for the murder of Flem Anderson, who was a negro policeman of the city. The accused relied upon self defense. At the time of the homicide defendant was operating a fruit store or soft drink stand on Court street, and in the early part of the evening of the 29th of August, 1920, a controversy of not a very serious character arose between the policeman and- defendant over the presence there of a girl named Katherine Shelton, who had stepped into defendant’s place
On the other hand, the state introduced witnesses who testified in effect that the policeman was standing at the corner of Court and Fry streets near a post, when defendant and his companion approached him and shot him down. There was some evidence that defendant had made threats against the policeman after the first incident about the girl, Katherine Shelton, herein detailed. The jury evidently believed the witnesses for the prosecution, and found defendant guilty of murder in the second degree.
An outline of the testimony has been detailed in order to intelligently discuss the points of error which are relied upon for reversal.
The assignments of error are: (1) It was error to refuse to permit defendant’s, witnesses to testify concerning the shooting of a negro, by the policeman, some days before the homicide in question; it was error to refuse to allow the defendant to state if he had heard of any specific instances or any specific shooting that had been made, which would lead him, defendant, to think he (the policeman) was a dangerous and quarrelsome man; and to refuse to allow defendant to state that he had received information, a short time before the homicide, that the deceased had shot a colored man out there without any cause or excuse. .(2) That it was error to permit witnesses for the defendant, over his objections, to answer questions concerning convictions of offenses which did not affect their truth and veracity, such as gambling, assault,
’ It is claimed in the first assignment of error, (a) that the lower court should have permitted witnesses for defendant to testify concerning the shooting of a negro man by the policeman a short time before the homicide on trial; (b) that the court erred in not permitting the accused to testify of specific instancés of violence on the part of deceased, brought to defendant by information, and especially to testify as to the specific instance of deceased having shot a negro man in that vicinity, without any cause or excuse, also through information received. The only witness for the defendant who was asked concerning his knowledge of the shooting of a colored man, by the policeman, was the defendant himself; the other witnesses who were asked concerning this matter were character witnesses introduced by the state for the purpose of showing that the policeman bore a good reputation as a peaceable and quiet man in the neighborhood in which he lived, and on cross examination they were asked if they had not heard of this specific instance. These character witnesses for the state were Marshall Morris, J. H. Blount, R. 0. Mitchell, Dr. John E. Cannaday, J. M. Craigo, and Joe Kent. Counsel has not designated any witnesses who were refused to so testify, and from our examination of the record we have found none except the above.
"Was it error not to allow Charley Walker, the defendant, to testify that he had heard of this specific instance of shooting by the policeman some days prior to the homicide? To sustain this proposition of error we are cited to our recent case of State v. Hardin, 91 W. Va. 149, 112 S. E. 401. In the-Hardin ease we decided that in eases of this character where self defense is relied upon, and there is evidence tend
On the second assignment of error, which relates to cross-examination of witnesses for the defendant, concerning their prior convictions of offenses against the law, we are not directed by counsel to the particular witnesses who were required so to state. Again, we have gone through the record for this purpose, and find that Katherine Shelton, who was
On the third assignment of error, namely, that the court should have permitted the defendant to show that the deceased bore the reputation of being a dangerous and quarrelsome man in the neighborhood in which he did police duty in the city, by witnesses who did not know his reputation in this-respect in the neighborhood in which he lived, we find that but one witness, Arthur Woodward, was not permitted so to testify, and that was after he had already done so without objection on the part of the state. Counsel does not refer to any specific witness, and in our search of the voluminous testimony we have found only one, Woodward, and it appears that he was permitted to testify that the policeman bore the reputation of being a dangerous and quarrelsome man in the neighborhood where the shooting was done, which was on the policeman’s beat. This witness was then asked if he knew the general reputation of deceased in the community in which he lived, and his reply was that he did not know Where the deceased lived. He was then again asked if he knew his reputation in the community where he served, to
The remaining assignment of error is to the refusal of defendant’s instructions, Nos. 12, 13 and 14. These instructions are to the effect that the policeman was not in the discharge of his official duty when he took the girl “Cat” by the arm and made her go to her home, (,or to where she lodged), from defendant’s place of business, and that defendant, in interfering with the policeman at that time, was not doing an unlawful act, and therefore the deceased was not entitled to any more consideration at the hands of the jury than if he was a private citizen, and that they should consider and think of deceased in the capacity of a private citizen only. Can we say as a conclusion of law. that the policeman was not acting in an official capacity and not discharging an official duty in making this girl get off of the streets at that time of night? Her occupation and livelihood were apparent. But, whether the policeman was within or without his official duty in protecting public morals and enforcing orderly and decent conduct of those on his beat, the instruction would tell the jury that he was to be considered as a private citizen at the time he was killed an hour or so after. He was patrolling his beat in the discharge of his duty at the time of the homicide, and to instruct the jury that he should then be considered as a private citizen would be error.
We affirm the judgment.
Affirmed.