40 W. Va. 593 | W. Va. | 1895
At tbe April term oí tbe Circuit Court of Morgan county, in tbe year 1894, tbe grand jury of said county found an indictment against Rudolph Zeigler; charging that on tbe 13th day of February, 1894, in said county of Morgan, be fel-oniously, willfully, maliciously, deliberately and unlawfully did slay, kill, and murder one John Sautters, against tbe peace and dignity of tbe state.
The plea of not guilty was interposed, issue joined thereon, and tbe case was submitted to a jury on tbe 1st day of May, 1894, which resulted, on tbe 9th day of tbe same month, in a verdict of not guilty of murder as charged in tbe indictment, but guilty of voluntary manslaughter. A motion was made in arrest of judgment, and for a new trial, which motions, having been argued, were overruled by tbe court, and tbe prisoner excepted. Judgment was rendered upon tbe verdict, and tbe prisoner was sentenced to confinement in tbe penitentiary for tbe period of two years, and tbe prisoner obtained this writ of error.
Self-defense was relied on by tbe prisoner, and it appears from bill of exceptions No. 8 that after, tbe evidence was concluded, and before tbe argument commenced, tbe prisoner, by bis counsel, prayed tbe court to give tbe jury tbe following instructions: Instruction No. 1 for defendant: “Tbe court instructs tbe jury that if from tbe evidence, tbe jury be of opinion that there is a substantial conflict of tbe evidence or circumstances as to whether tbe killing was done in self-defense, and tbe circumstances or other evidence preponderate in favor of self-defense, or if it was equally balanced as to tbe killing being done in self-defense, tbe jury
These instructions were objected to by the state, and the court declined to give them, and the prisoner excepted; and the court, on its own motion, gave the jury, in lieu of said instructions, the following: Instruction No. 1: “The court instructs the jury that when one, without fault himself, is attacked by another in such a manner or in such circumstances as to furnish reasonable grounds for apprehending a design to take away his life or to do him some great bodily harm, and there are reasonable grounds for believing the danger imminent, that such design will be accomplished, and the person assaulted has reasonable grounds to believe and
The court also, at the instance of the state, gave the jury the following instructions, which were excepted to by the prisoner. The exceptions were overruled by the court: Instruction No. 1: “The court instructs the jury that under an indictment for murder the jury may find the prisoner guilty cf murder in the first degree, or guilty of murder inthesecond
The prisoner moved the court to set aside the verdict of •the jury, which motion was overruled by the court, and the evidence was certified in a bill of exceptions.
The first error assigned and relied upon by the prisoner is as follows: “(1) It was error not to' arrest the judgment, and grant him ’a new trial. The evidence clearly established that the petitioner acted strictly in self-defense, and the homicide was therefore excusable. There was but one witness for the state whose testimony made out a case of murder or manslaughter, and that was Christian Baurle. Upon the contrary, three other witnesses who were present — the prisoner, his son William, and his wife, Louisa Zeigler — all contradicted Baurle, and their testimony tends to exhibit a case of self-defense, and to show that Baurle and the deceased, Sautters, were the aggressors; that Baurle assaulted Zeigler first, and Sautters followed it up by snapping his musket at him, and then clubbing the gun and striking him with the butt end a severe blow, leaving a scar still plainly visible. His evidence is confirmed by Dr. Green, who dressed and probed the petitioner’s wound and proves that it was inflicted by some blunt instrument. The state introduced a witness (the wife of the deceased) who proved that she distinctly saw something raised up in the air like the butt of a gun. It is plain therefore, that the jury found against the weight of evidence and this verdict should have been set aside,'and a new trial granted.”
This assignment of error calls for an investigation of the feeling existing between the prisoner and the deceased, and the immediate circumstances surrounding the parties, at the precise moment when the fatal shot was fired. Trouble existed between the deceased and the prisoner in regard to a i-oad which the prisoner claimed was a private road, ■and which deceased claimed was a public road. In pursuance of his claim, prisoner had obtained an injunction restraining the use of said road as a public road. On the
William Zeigler, who was present, says, as he came out of
The prisoner also gave substantially the same statement as to the manner in which the killing was done; stating that be did not shoot Sautters until be bad struck him once with the gun over the bead, and was preparing to strike him a second time.
According to Baurle’s testimony the prisoner was pointing bis pistol at Sautters without bis offering to strike with the gun, and be states that the wound in prisoner’s bead was caused by bis fist; but Dr. G-reen states that be found prisoner suffering with wound on left side of bead, and also one about the ear or temple; thinks it was inflicted by coming in contact with some blunt instrument; wound could have been inflicted by gun, or instrument of that kind. And Mrs. Sautters, the wife of the deceased, who says she went down to the end of the garden and bad a good view, and was near enough to bear what Zeigler said to Baurle about the injunction, when asked on cross-examination, “Did you not say, in
The witness Baurle further testifies that when he ran, he saw Zeigler point his pistol towards Sautters, and heard pistol cracks coming closer and closer to him; seeking to create the impression that Sautters was retreating and the prisoner pursuing him, at the time he was wounded. But that theory is at once refuted by the fact that the evidence shows that Sautters was shot in the breast. It is then apparent and manifest that this witness, Baurle, was retreating at full speed at the time the fatal shot was fired. He was not in a position to say whether Sautters clubbed his gun and struck the prisoner over the head with it, or not. The prisoner and his son] concur in stating that Sautters had struck prisoner over the head with his gun, and was preparing for the second stroke when he received the fatal shot; and it is evident there would have been no necessity for clubbing the gun, had he fired when the cap bursted. Baurle does not mention the stroke inflicted upon the prisoner with the butt of the gun, but states that the wound in Zeigler’s head was caused by his fist; and, to place the most charitable con- ■ struction upon this testimony of his, we must say that Baurle did not see or know what transpired after he received his wound and hastily left the battle ground. The fact that the gun was clubbed and used at some time during the combat does not rest alone upon the testimony of the prisoner and his son, but the wife of the deceased states that she saw the gun brandished above the heads of the combatants; and, unless it was done after Baurle retreated, it is clear that he suppressed a very material and important fact, in delivering his testimony. That the butt of the gun was used upon the head of the prisoner appears from the fact that the prisoner had a contusion on his forehead near his eye, and congestion of the eye, which was evidently the result of the blow received from the fist of Baurle, while Dr. G-reen, who examined the prisoner’s wounds, says he had one wound on the left side of the head, and also one about the ear or temple,
This was the case presented to the jury by those who were present, and had an opportunity of seeing what transpired. In addition to this, Mrs. Sautters, the wife of deceased, states that she heard the prisoner tell Baurle “they •shouldn’t travel that road, and said something about injunction.” She also states that prisoner, after firing first shot, fired two more shots at Baurle as he ran.
Now, there can be no question from the testimony that bad feeling existed between the prisoner and the deceased. It appears from the testimony of Isaac Holton: That he was invited to go to Zeigler’s, and was told that Baurle and Saut-ters were going to open this road. It was then obstructed by bars. That he went, and Sautters and Baurle had guns. 'Zeigler was engaged in hauling hay. That Charles Butte cut the bars down, and he and Zeigler came together in fighting attitude, and Charles Butte pushed or knocked him down. That Zeigler picked up t>A’o rocks, and witness told him not to do that — he might get hurt, or hurt somebody — and he threw the stones down and went into his barnyard. Subsequent to that time, the record discloses that repeated threats were made by Zeigler and Sautters on account of the feeling existing in regard to this road. Zeigler appealed to the law for protection, and obtained the injunction, of which he gave Sautters notice at the time he approached, on the day the shooting occurred.
The law never intended, however, that in the circumstances of this case it was the duty of Rudolph Zeigler, the prisoner, to run away from his home, or hide himself, when the deceased (Sautters), accompanied by his friend and witness, came with their guns to force their way through this road. They were warned of the existence of the injunction by Zeigler; and, after the difficulty commenced between Zeigler and Baurle, it must be remembered that the entire combat only lasted, according to the testimony, from five to eight seconds. During that period Zeigler had received a heavy blow on the head from the fist of Baurle, which, according to Baurle’s testimony, knocked Zeigler away from him, and turned him around. Baurle had been pulled away and thrown back by William Zeigler (the son) and had rushed again at Zeigler, and received the shot in the elbow, and started to run. Zeigler fired two shots in quick succession after Baurle; and Sautter’s gun having failed to shoot, he clubbed his gun, and struck Zeigler over the head, and was raising it for a second stroke when Zeigler fired the fatal shot. Row, if we put ourselves in the place of Zeigler for the few seconds that this combat lasted, and consider that Baurle says “he don’t know how hard he struck, and whether he struck onc^ or twice; that he is a coward and if he strikes a man he strikes him good;” and that defendant while staggered and blinded by this blow on the eye and forehead, receives the crushing blow from the butt of the musket in the hands of Sautters — w7e may well infer that the fierce
In the case of State v. Cain, 20 W. Va. 680, this Court stated the law as follows: “Where one, without fault himself, is attacked by another in such manner or under such circumstances as to furnish reasonable grounds for appre-hen ding, a design to take away his life or to do him some great bodily harm, and there is reasonable ground for believing the danger imminent that such design will be accomplished, and the person assaulted has reasonable grounds to believe and does believe such danger is imminent, he may act upon such appearances, and, without retreating, kill his assailant, if he has reasonable grounds to believe that such killing is necessary in order to avoid the apparent danger; and the killing under such circumstances is excusable, although it may afterwards turn out that the appearances were false, and that there was in fact neither design to do him serious injury, nor danger that it would be done. But of all this the jury must judge from all the evidence and circumstances of the case.” It is proper just here to call attention to the fact that the prisoner had actually. made no demonstration of any bind whatever towards the deceased until after he snapped his gun at him, and after he received the blow on his head with the breech of the gun. Before that his entire attention appears to have been occupied with Baurle. Bishop, in 'his work on Criminal Law (volume 1, § 865) states the rule thus: “If one who is assaulted (we have seen that there must be an overt act rendering the danger imminent) being himself without fault in bringing on the difficulty, reasonably apprehends death or great bodily harm to himself unless he kills the assailant, the killing is justifiable.” Now, that the deceased started from his home with his loaded gun, with the deliberate intention of carrying out his previous threats by killing the prisoner if he came out to him iii that road, is manifest from his subsequent actions; by his snapping his gun at prisoner while engaged in combat with Baurle; by clubbing his
The next assignment of error is as to the action of the court in excluding- the testimony of Conrad Potter as to threats made by Baurle against the prisoner. These threats, whether communicated to the prisoner or not, were admissible to show the prejudice and state of mental feeling on the part of the witness towards the prisoner, and should
The fourth assignment of error is as to the exclusion of the testimony of John Johnson as to threats made by the deceased against the prisoner, that he would kill him if he came out to him on that road. It is true that the witness did not mention Zeigler’s name in that conversation, but he was talking about this road, and it was well understood what he intended. This threat does not appear to have been communicated to Zeigler; but threats of Zeigler had been shown, and it should have been allowed to go to the jury, in connection with the subsequent acts-of the deceased, to show' that his going to Zeigler’s ■with his loaded gun was in pursuance of a previously formed cjesign.
The sixth assignment of error is as to the action of the court in excluding the testimony of George Shriver, who after testifying as to his being road surveyor, and about some conversation with prisoner as to whether the road in controversy was a public road, was asked on cross-examintion, if the deceased cut down the bars of Zeigler on said road; and the court ruled that if the defense wished to ask any questions about other conversations, they would have to make him their witness. And, while I think the question would have been proper, if asked in chief, I think it was properly excluded on cross-examination.
The sixth and seventh assignments of error, I think, were well taken. The first relates to the contradiction of the witness W. E. Butts'in a material matter, where the foundation had been properly laid; and the second rests upon the same ground.
The eighth assignment of error relates to the action of the court upon the instructions asked for — -in refusing all of the instructions asked for by the prisoner, and giving all save one asked by the state. The first instruction asked for by the prisoner was properly rejected, as it fails to state the law as laid down in the case of State v. Jones, 20 W. Va. 764. The second instruction prayed by the defendant was properly refused, as I do not think it states the law correctly. Whart.
The Circuit Court committed no error in rejecting instructions Nos. 3 and 4, prayed for by the prisoner, for the reason that they are not sufficiently qualified by stating, as was stated in Cain’s Case, in the instruction given by the court upon this question, in instruction No. 1 for the defendant, “When one, without fault himself, is attacked,” etc. Instructions 3 and 4 should have contained this qualification, and instructions Nos. 1 and 2, given for the defense by the court, not only contained this qualification, but embodied all that was asked for by the prisoner in said instructions Nos. 2 and 4. It is true, this Court held in State v. Evans, 33 W. Va. 418 (10 S. E. Rep. 792) that “a party has a right to have his instructions given in his own language, provided there are facts in evidence to support it; that it contains a correct statement of the law, and is not vague, irrelevant, obscure, ambiguous, or calculated to mislead.” But, unless they state the law correctly, they should be rejected.
For the foregoing reasons the judgment complained of must be reversed, the verdict set aside, a new trial awarded, and the cause is remanded.
I doubt whether under the rule of practice in this Court, we should express any opinion upon the evidence, as the case must be retried for other reasons than those arising under the motion for a new trial under the evidence.