State v. Hardin

• Decision Date: 09 May 1922
• Docket Number: 4460.
• Citation: 112 S.E. 401,91 W.Va. 149
• Parties: STATE v. HARDIN.
• Court: West Virginia Supreme Court

112 S.E. 401

91 W.Va. 149

STATE v. HARDIN.

No. 4460.

Supreme Court of Appeals of West Virginia.

May 9, 1922

Submitted May 2, 1922.

Syllabus by the Court.

In a prosecution for murder, where self-defense is relied upon to excuse the homicide, and there is evidence showing, or tending to show, that the deceased was at the time of the killing, making a murderous attack upon the defendant, it is competent for the defendant to prove the character or reputation of the deceased as a dangerous and quarrelsome man, and also to prove prior attacks made by the deceased upon him, as well as threats made to other parties against him; and, if the defendant has knowledge of specific acts of violence by the deceased against other parties, he should be allowed to give evidence thereof.

In a prosecution for homicide, where self-defense is relied upon as an excuse, the burden is upon the defendant to establish such defense by a preponderance of the evidence, and, in determining whether or not such defense has been so established, the jury should consider any evidence introduced, either by the state or the defense, bearing upon that issue.

One who has been attacked, or is threatened with a murderous attack which he has reason to believe will be made, may arm himself for defense, and in such case no inference of malice can be drawn therefrom; and in a prosecution for homicide, where self-defense is relied upon, and there is evidence showing or tending to show, that the defendant had been attacked by the deceased just prior to the homicide, and that threats of violence had also been made against him just prior thereto an instruction telling the jury that no inference of malice should be drawn from the fact that the defendant was armed upon the occasion of the homicide, in case they find he had reasonable ground to believe that a murderous attack would likely be made upon him, should be given.

Error to Circuit Court, McDowell County.

Elijah Hardin was convicted of murder in the first degree and sentenced to the penitentiary for life, and he brings error. Reversed, verdict set aside, and case remanded for new trial.

Litz & Harman, of Welch, for plaintiff in error.

E. T. England, Atty. Gen., and R. Dennis Steed, Asst. Atty. Gen., for the State.

RITZ J.

Defendant was convicted, in the criminal court of McDowell county, of murder in the first degree, and sentenced to the penitentiary for life. The circuit court of said county refused to review this judgment, and this writ of error is prosecuted to this court for that purpose.

The defendant and the deceased, Dave Shoun, were first cousins, and had been living with their families in houses upon adjoining lots at Empire, in McDowell county, for about two years immediately preceding the shooting. The yard around each of the houses was enclosed, and the houses in which the parties lived separated by a fence constructed about half way between the two, or about 15 feet from each house. The deceased was a man about 40 years of age, and weighed about 185 to 190 pounds, and was physically strong and well developed. The defendant is a much younger man, about 27 years of age, and weighed about 117 pounds. The evidence of the defendant's wife showed that, prior to the shooting, deceased had made improper proposals and advances to her, which she had communicated to the defendant. The evidence of other witnesses showed that, very shortly before the fatal occurrence, the deceased had made threats of violence against the defendant, and had, on at least two occasions, drawn a pistol on him, and compelled him to humiliate himself while under this duress.

It seems that, on the day of the shooting, the defendant had determined to resign his position with the Empire Coal & Coke Company and moved away. He had turned in his time book, and the superintendent of the company had given him a letter recommending him to any other employer needing his services. He then went to his home and, according to the evidence of the deceased's son, Fred Shoun, called to the deceased. According to this witness the deceased was not at home at the time, and he so informed the defendant. When the deceased did come from his work, his son testifies that he informed him that the defendant wanted to see him, and that he thereupon went to the fence separating the two houses, and called the defendant, who likewise came up to the fence; that when the parties thus confronted each other, the defendant said to the deceased, "You have been telling lies on me;" that the deceased denied this statement, but averred that the defendant and his wife had been telling lies on him, and that he could prove it, and that thereupon the defendant pulled his pistol and fired one shot, which grazed the head of the deceased, who immediately turned as if to retreat, when another shot was fired which entered his body on the right side, and still another in quick succession, which penetrated the body, and still a fourth shot which it appears missed the deceased, and which was fired after deceased had turned to leave the scene of combat. As the result of the shooting, Shoun fell, after walking a very few feet, and died almost immediately.

The defendant's version of the affair, in which he is corroborated by his wife and brother, both of whom witnessed it, is very different. They say that, when Shoun came home he called to the defendant who was on his porch; that the defendant went to the fence, and that, when he got there, Shoun remarked to him that he understood he was going to leave; that the defendant advised him that such was the case; that he had determined to give up his position and go somewhere else to avoid the trouble they were having, and showed the deceased the letter which the superintendent had written for him; that Shoun declined to read the letter, remarking that he cared nothing about that; that defendant was not going to leave; that he was going to kill both him and his wife before he got off the job, accompanying this statement by striking at the defendant with his right hand, and at the same time drawing from his pocket with his left hand a revolver; that the defendant dodged the blow made at him, aand immediately pulled his pistol and fired four shots in rapid succession; that immediately after he fired, Shoun made a few steps toward his house, and fell with his head on the running board of his automobile, and died before medical assistance...