85 W. Va. 271 | W. Va. | 1919
Defendant was indicted and tried for the murder of Donald P. Davis, late sheriff of Mineral county, convicted of mtirder in the second degree and sentenced to imprisonment in the penitentiary for ten years. lie brings error, assigning numerous grounds for reversal of the judgment.
He petitioned for a change of venue, on the alleged ground that a strong feeling of prejudice existed in the minds of the citizens of Mineral county against him, both on account of the business conducted by him in Westernport, Maryland, just across the line from the Town of Piedmont, where the homicide occurred, his business being that of a saloonkeeper and he having been accused of selling intoxicating liquors in West Virginia in violation of law, and because of the great popularity of the deceased officer, claiming that it was not possible for him to obtain a fair and impartial trial in that county, and filed his own and the affidavits of four others in support thereof setting forth substantially the following facts: That, in a general way, affiants knew the circumstances surrounding the death of the late sheriff; that they had heard the case discussed by numerous persons from different parts of the county and, basing their opinion on such comments made in their presence and on the fact that defendant had been actively engaged in the saloon business in Westernport and had been charged with numerous violations of the prohibition statute of West Virginia; that by-reason of the further fact that deceased was reported to havt met his death while attempting to arrest defendant in connection with some alleged violation of the liquor laws, and for other causes, there exists a' prejudice against defendant in Mineral
Petitioner also exhibited three newspaper articles, one published in the “Mineral Daily News” on the 28th of June and another m “The Mountain Echo” on June 30th, 1917, newspapers -published in the Town of Keyser, and alleged to have wide circulation in the county, the first of which gives a detailed account of the manner in which Sheriff Davis was killed, refers to defendant asa “cowardly brute”, states that' “It is said that the bulk of his fortune has been made and is being made by violating the West Virginia prohibition laws, and that over '50 per cent of the violations in Tucker and Mineral counties come out of Weisengoff’s saloon in Westernport,” that he is doing a “large bootlegging business in West Virginia,” that he utterly disregards the law and sells to boys at all times; and the latter characterizes him as “a Westernport outlaw saloonkeeper,” a “crime-soaked foreigner,” and says: “Those who are acquainted with the detail of the efforts of Sheriff Davis to force Weisengoff out of the West Virginia field with his unlawful confederacy for violation of the prohibition laws, and the' defiant threats of the outlaw, coupled with his known hatred of the fearless officer, believe that after the sheriff stepped on the car and the brutal foreigner actually had him in his power through the speed he was able to secure by manipulating the accelerator, his purpose was to dash the machine against the great steel frame work of the bridge, kill or maim the officer and take his own chances of escape through his ability to handle the car. Results practically bear out this assumption.”
Also another article appearing in the Baltimore Sun, a newspaper alleged to be generally circulated in Mineral county, under the date of ICeyser, W. Va., July 26th, in which it is stated that a change of venue will probably be asked for in the Weisengoff case, that “the feeling is ugly at Keyser against Weisengoff, and it was impossible to get a local attorney to defend him.”
The State answered his petition and filed the affidavits of one hundred and seventy-seven residents of the county to the effect that affiaints were familiar with the sentiment existing in their respective communities relative to the homicide and knew of no bias, prejudice or personal feeling then existing among
These numerous affidavits are purely negative and merely state the conclusions of the affiants, not facts from which the court could draw its own conclusion, as the law in. such case requires. State v. Sheppard, 49 W. Va. 582-593; and State v. Douglass, 41 W. Va. 537-539. It further appears that T. A. Dixon, a deputy of the deceased sheriff, assisted in procuring a number of these affidavits.
On the 30th. of duly, 1917, the court overruled defendant’s motion and he excepted, and the case was then set for trial on the 27th day of the following August. On the day set for trial, defendant renewed his motion for a change of venue, and in support thereof filed his supplemental affidavit and the affidavit of Taylor Morrison, of counsel for defendant, who had resided in Keyser for nine years next priot to that time, and asked permission to examine, at the bar of the court, thirty-nine of the af-fiants for the State, who were then present in the court room. Counsel stated that, if said witnesses were permitted to testify, they would say, “That they knew of no facts upon which they based thp affidavits which they formerly made herein, and that a large number of said witnesses would say under oath, that in their opinion, there is now such deep seated and abiding prejudice in said county against the defendant that he cannot obtain a fair trial herein.” The court ruled that he would not hear iwo motions for a change of venue at the same term, unless it could be shown that there had been a change of sentiment among the people of the county against the prisoner since the last motion was decided, and said he “would not accept the statements -of counsel as to what the said witnesses would testify to,” and that if such evidence was proper to be considered it could be done only on affidavits, and again overruled defendant’s motion, to which he again excepted.
It appears from Morrison’s affidavit that the deceased sheriff had been a resident of Keyser, the county seat of Mineral county,
On the first consideration of this case, and in our former opinion, we were inclined to view the rulings of the learned trial court as not being prejudicial to the accused, that he had been tried by a jury composed of men who had qualified on their voir dire as fair minded, unprejudiced and impartial, and that, the prisoner had no cause to complain of the court’s denial of a change of venue.- But on a rehearing and further consideration of the'case we are constrained to alter our opinion on this point, as well as on the vital point affecting the crime of which the prisoner was found guilty. That a prevailing public prejudice existed against the accused, is fully sustained by the affidavits filed on behalf of defendant. That one accused of crime and
The court should have permitted defendant’s counsel to cross-examine the affiants for the State when he proposed to do so, on the renewal of defendant’s motion. Affiants were then in court, and it would have required only a short time to hear their testimony. Defendant had a right to cross-examine them and the request snould not have been denied. Their affidavits amounted to mere statements of conclusions, and it appears that defendant wanted to show by them that there was then such deep
Defendant moved for a continuance op the ground of the absence of Russell Sangid. He swears he was an important witness to facts which could not be proven by any other witness at the trial, that he caused a summons to be issued for said witness seven days prior to the day of trial and placed it in the hands of the sherill and that the sheriff had not served it because the witness was out of the state, having gone to New York City on the 13th of August, 1917. It appears by the affidavit of Ed iiabeeb that said witness was not then and never had been a resident of West Virginia, that at the time of the homicide he conducted a restaurant in Westernport, Maryland, and resided there, all of which was well known to the defendant. Four weeks before when the case was set for trial, the parties were notified by the court to be ready for trial on the 27th of August, 1917. Defendant knew he had the right to take the depositions of nonresident witnesses, yet no effort was made to take Sangid’s deposition, and summons was not issued for him until seven days before trial day. Defendant swears he “fully expected” to have said witness present- in court in his behalf on the day of trial, and that neither he nor his counsel knew he had gone to New Aork until the 23rd of August, only four days before. Sufficient diligence is not shown to entitle defendant to a continuance. He does not say the witness had promised him to attend trial, and, knowing he was a nonresident, he made no effort to take his deposition.
A certain remark made from the bench by the presiding judge, derogatory to the prisoner is complained of. In commenting upon the incendiary newspaper article, it appears the judge said : “The man who wrote this article suggesting lynching and mob
It is assigned as. error that the jury were not put in charge of the proper officer. Upon the death of Donald P. Davis, T. A. Dixon, his deputy, was appointed to succeed him and, because of his official connection with the deceased, when the jury were impaneled and sworn, to try the case they were placed in charge of W. E. Taylor, a police officer specially appointed by the court, lie was sworn to keep the jury together and not allow them to separate, and not to converse with them himself touching the matters of the trial nor allow any other person to converse with them on any subject, without the leave of the court. No objection was made to Taylor’s appointment at the time, nor is it intimated that there was any improper conduct on the part of the jury. We need not say whether or not the sheriff could have discharged the duty, because it is not material. The court, no
The homicide occurred under the following circumstances: Defendant had been indicted in the circuit court of Mineral county for unlawfully selling spirituous liquors, and had given bond for his appearance at the April, 1917, term of the court to answer said indictment. The bond was declared forfeited, and a capias issued for defendant’s arrest, and placed in the hands of the sheriff on the 22nd day of May, 1917. On the 27th day of June following, Donald P. Davis, the sheriff, was in the town of Piedmont and saw defendant pass through the town in his automobile, coming from Westernport where he lived. On inquiry, he ascertained that the defendant would likely return over the same road, as it was the only practicable way of travel by automobile, and waited his return. Standing on the sidewalk he saw defendant returning, stepped out into the street and waved to him to stop, and defendant apparently made no effort to stop his machine, which was moving at the rate of twelve miles per hour according to his own testimony, the sheriff stepped aside and, as the machine passed him, mounted the running board and, according to tbe testimony of some of the witnesses, told defendant he was under arrest, took hold of the steering wheel and was apparently endeavoring to stop the machine, when immediately its speed was increased to a very rapid rate, and it ran a distance of about eight hundred feet and collided with the iron bridge spanning the Potomac River between the towns of Piedmont, West Yirginia, and Westernport, Maryland, wrecking the automobile and injuring the sheriff so badly that he died in about two hours! Some witnesses say the automobile was run
The case was tried upon the theory that, if defendant was resisting the sheriff’s lawful attempt to arrest him, the resistance was unlawful and, if the officer’s death resulted directly from such unlawful resistance, the homicide amounted to murder in the second degree, whether malice existed in the heart of accused or not. But malice is an essential element of murder either in the first or second degree, 2 Bishop’s New Grim. Law, Secs. 627 and 677, and 13 R. C. L. 761, and is the distinguishing element between murder and the other grades of homicide. Authorities cited, and State v. Michael, 74 W. Va. 613; McWhirt’s Case, 3 Gratt. 594; and 13 R. C. L. 783; Bishop, Vol. 2, See. 689, says: “If an act is unlawful or is such as duty does not demand, and of a tendency directly dangerous to life, the destruction of life by it, however unintended, will be murder. But if the act, though dangerous, is not directly so, yet sufficiently to come under the condemnation of the law, and death unintended results from it, the homicide is manslaughter; or if it is of a nature to be lawful properly performed, and it' is performed improperly, and death comes from it unexpectedly, this also is manslaughter.” However malice need not be expressed, but may be inferred from the circumstances of the killing, for example, as by the use of a deadly weapon without any, or upon slight provocation; nor need it have existed in the mind of the slayer for any length of time; it is enough if it springs into existence the instant of the killing. State v. Panetta, decided at the present term, and 2 Bishop’s New Crim. Law, Sec. 677.
Manslaughter is generally described by the text-writers as any form of unlawful killing not amounting to murder.; that is, a killing without malice, 2 Bishop, Sec. 627; 13 R. C. L. 673, and may be either voluntary, as where the killing, although intentional, is done in the heat of passion, suddenly produced by strong provocation, and before the passion has had time to subside ; or involuntary, as where a homicide is caused by the doing
We have examined a great many cases of homicide of officers, committed while making lawful arrests, but have been unable to find any case holding that, where the death resulted from the prisoner’s efforts to escape, and not in the doing of some particular act inherently dangerous, or designedly committed for the purpose of inflicting bodily injury, the accused is guilty of murder. Unless the jury believed defendant intentionally collided
Many instructions were given on behalf of the State, to the effect that, if the jury believed deceased was killed as a direct result of defendant’s efforts to escape arrest, knowing that deceased was an officer and duly authorized to arrest him, it was immaterial to constitute second degree murder, whether he willfully intended to commit the homicide or dp deceased any violent injury. In view of the circumstances attending the homicide, such instructions were misleading and prejudicial. The prisoner had three or four of his children in his automobile at the time, and it is hard to conceive that he was so indifferent to their and his own safety as to run his machine against the iron bridge intentionally fox the purpose of killing or doing great injury to the sheriff.' That the killing was the direct result of defendant’s efforts to escape can not be doubted, but that does not necessarily show malice. The specific act committed during his continuous effort to -escape, which caused the death, must have been intentionally done in order to constitute malicious homicide or murder. That defendant may have had control of his automobile and could have stopped it, and refused to' do so, does not necessarily prove a purpose to kill the sheriff or cause him great bodily harm, it rather proves, we think, a deliberate purpose to escape out of the officer’s jurisdiction, even though it was necessary to carry the officer on the .running board of his automobile to do so. - „ T
We have sufficiently indicated in this opinion the principle by which the jury must determine from the disputed facts, the degree of homicide of which defendant is guilty, and it is unnecessary to review seriatim and at length the instructions given and those refused, of which defendant complains. . That defendant is guilty of some degree of homicide must be admitted, but that he is guilty of murder in either .degree, his counsel most strenuously deny. The degree of the crime depends solely on whether he intentionally ran his automobile against the bridge, or whether the collision was a mischance or accident. If he did it intentionally, he is guilty of murder, because, going at the speed which the evidence shows he was running, it vras an act which would be apt to produce death or great bodily harm, and
The State’s instructions Nos. 2 and 8 are correct in theory, as there is some evidence of previous threats by defendant against deceased to support them. These instructions also told the jury they could find the defendant guilty of murder in the first degree, if they found him “guilty of wilful, deliberate and premeditated killing,” and further believed that defendant had proved no extenuating circumstances or none appeared from the case made out by the State.
^STos. 3, 19, 20, and 21 are erroneous for the reason that they fail to submit to the jury the question of the collision with the bridge being accidental, which if true would acquit the accused of the charge of murder in either degree.
No. 4 correctly instructs the jury concerning the right and duty of an officer in making a lawful arrest.
Nos. 5, 6, 7, 9, 10, 13, and 12 propound correct propositions of law.
Substituting the word “either” for “neither” appearing in instruction No. 13, which appears to. be a typographical error, it states the law correctly respecting voluntary manslaughter.
We find no fault with Nos. 14, 15, 16, and 17.
No. 18 is as follows: -“The court instructs the jury that proof beyond a reasonable doubt means proof to a moral certainty, but not necessarily to a reasonable certainty; that they shall believe as jurors what they believe as men.” This instruction* is bad for two reasons, first, because it suggest, that the jurors may disregard their oaths by telling them what they do not doubt as men they should not doubt as jurors. State v. McCausland, 82 W. Va. 525; State v. Worley, 82 W. Va. 350, 96 S. E. 56; and State v. Young, 82 W. Va. 714, 97 S. E. 134 A man of sufficient intelligence to serve as a juror knows what is meant by a “reasonable doubt,” and whether or not he entertains such a
The court gave defendant’s instructions NoS. 1, 2, 3, 5, 6, 7, and 8, and also a part of his instruction No. 4; but refused to give his Nos. 9, 10, 11, 12, .13, 14, 15, 16, and a part of his No. 4, of which he complains. The refusal to give the last part of his No. 4 was proper. It does not follow, because he may not have intended to injure or kill the sheriff that he is not guilty under the indictment. His escaping while under arrest was unlawful and makes him at least guilty of involuntary manslaughter.
The court committed no error in refusing defendant’s instructions Nos. 9, 10, 11, 12, 13, 14, and 15, for reasons already given in the opinion. The specific question on which the degree of the homicide depends, and the one to which the jury’s attention should have been directed, was whether the defendant ran his automobile against the bridge intentionally, or accidentally. If the collision with the bridge was intentional, while going at >a dangerous speed, he was guilty of murder,- and if accidental, he was guilty of manslaughter only.
Defendant’s instruction No. 16 is as. follows: “The Court further instructs the jury that accidental killing is not such a matter of defense as throws upon the prisoner the burden to prove it by a preponderance of the evidence; that it is the duty of the State to allege and prove that the defendant killed Donald P. Davis intentionally or wilfully, or unlawfully, and if the evidence in this case, taken all together, raises in the minds of the jury a reasonable doubt as to whether the defendant killed Davis intentionally or accidentally, they should not find the pris'oner guilty of a higher offense than that of involuntary man- . slaughter.” This instruction is correct.’
It was not error to exclude the testimony of Dr. T. L. Wil
ISTor was it error to admit the testimony of Martin, the undertaker, who prepared the body of deceased for burial, to the effect that deceased’s hip was knocked out of place, the cavity filled with pus and blood and the hip crushed and bruised. This evidence was proper for the purpose of proving that the collision of deceased’s body with the bridge had caused an internal hemorrhage soon resulting in death.
The judgment will be reversed and the cause remanded for a new trial.
Reversed and remanded.