State v. Blankenship, 10404

• Decision Date: 04 March 1952
• Docket Number: No. 10404,10404
• Citation: 69 S.E.2d 398,137 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: STATE, v. BLANKENSHIP.

Page 398

69 S.E.2d 398

137 W.Va. 1

STATE, v. BLANKENSHIP.

No. 10404.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 22, 1952.

Decided March 4, 1952.

Syllabus by the Court.

1. The action of attorneys for the prosecution in a felony case in striking the names of two jurors from the list of a panel of twenty qualified jurors outside the courtroom and out of the presence of the defendant, who remained in the courtroom in the presence of the court and the jurors, does not violate the provision of Section 2, Article 3, Chapter 62, Code, which requires that a person indicated for a felony shall be personally present during the trial and does not constitute reversible error.

2. 'A party who is surprised by unfavorable testimony given by his own witness may interrogate such witness as to previous inconsistent statements made by him.' Point 2, Syllabus, State v. Swiger, 105 W.Va. 358 .

3. 'Code, 57-3-6, requires an accused who voluntarily becomes a witness in his own behalf to state in response to questions propounded on cross-examination, whether or not he has been convicted of other offenses.' Point 5, Syllabus, State v. Taylor, 130 W.Va. 74 .

4. The admissibility of evidence as rebuttal is within the sound discretion of the trial court, and the exercise of such discretion does not constitute ground for reversal unless it is prejudicial to the defendant.

5. An instruction which ignores material evidence is erroneous and should be refused.

6. An instruction which tends to mislead the jury should not be given.

7. 'Duplication of instructions is unnecessary and undesirable.' Point 4, Syllabus, Robertson v. Hobson, 114 W.Va. 236 .

8. Section 19, Article 11, Chapter 61, Code, as amended, does not require that notice be given to a defendant that information of his prior convictions and sentences will be presented to the court by the prosecuting attorney; and, if the provisions of such section are substantially complied with, the absence of notice to the defendant is not error.

9. 'Where in a criminal proceeding there is no error other than the entry of a judgment imposing the sentence, the judgment should be reversed and the case remanded for proper judgment of sentence to be entered by the trial court.' Point 9, Syllabus, State v. Justice, 130 W.Va. 662 .

W. H. Ballard, II., Welch, Sherman H. Ballard, Peterstown, for plaintiff in error.

William C. Marland, Atty. Gen., George W. Stokes, Asst. Atty. Gen., for defendant in error.

HAYMOND, Judge.

The defendant Vurgis Blankenship was indicted for the murder of Glen Blankenship in the Criminal Court of McDowell County. He was tried and by a jury found guilty of murder of the second degree. After the jury returned the verdict of guilty and a defense motion to set it aside had been overruled by the court but before sentence for the crime for which the defendant had been convicted was imposed, the prosecuting attorney of McDowell County informed the court that the defendant had been twice before convicted in the United States of a crime punishable by confinement in a penitentiary and, upon being asked if he was the same person who had been previously convicted of each of two offenses punishable by confinement in a penitentiary, the defendant in open court acknowledged that he was the person who had been previously so convicted. The court then sentenced the defendant under the habitual criminal statute, Section 19, Article 11, Chapter 61, Code, 1931, as amended, to imprisonment for life in the penitentiary of this State. Upon writ of error to the foregoing judgment the Circuit Court of McDowell County set aside the sentence of life imprisonment on the ground that the defendant, before he was questioned as to his identity in connection with the two prior convictions, had not been duly cautioned as required by the statute, but refused to set aside the verdict and grant the defendant a new trial, and remanded the case to the criminal court for the entry of a judgment of imprisonment in compliance with the requirements of the habitual criminal statute. Upon the remand the defendant, after being duly cautioned, again acknowledged in open court that he was the same person who had been twice previously convicted in the United States of a crime punishable by confinement in a penitentiary. The court by final judgment entered April 9, 1951, sentenced the defendant to imprisonment for life in the penitentiary of this State. The Circuit Court of McDowell County Saturday, April 8, 1950, the defendant, a error by order entered April 9, 1951; and Glen Blankenship on land owned or writ of error upon the petition of the defendant.

About five o'clock in the evening of Saturday, April 8, 1950, the defendant, a resident of Blackie, Virginia, shot and killed Glen Blankenship on land owned or occupied by Claude Blankenship, near Paynesville in the Panther Creek section of McDowell County, West Virginia. The pistol shot which killed Glen Blankenship was fired by the defendant while he was standing within ten or twelve feet of his victim. The bullet which caused the death of Glen Blankenship entered the left side of his face near the corner of his mouth, took an upward course, and did not emerge from his head.

Earlier that day the defendant, who had spent the preceding night at the home of his father, went on foot from his father's home to the home of Charlie Blankenship, a distance of about a mile and a quarter. When the defendant left his father's home he took with him a pistol and a pint of liquor. After the defendant had been at the home of Charlie Blankenship for about an hour, Glen Blankenship and two companions also came there. Glen Blankenship owned a fractious mule which he had left with Charlie Blankenship, his uncle. A few minutes after Glen's arrival he, his companions, Charlie Blankenship and the defendant went to a barn, got the mule and some of the group tied him to a cherry tree. Glen Blankenship whipped the mule and sometime during these activities both Glen Blankenship and the defendant rode the mule in their efforts to 'break' him. The defendant and Glen Blankenship and the other members of the group consumed most or all of the liquor of the defendant and a portion of a pint which Glen Blankenship had, and the defendant then left Glen Blankenship and Charlie Blankenship and got an additional one half gallon of liquor which he kept somewhere on a ridge nearby. Upon his return from the ridge with the liquor the defendant, Glen Blankenship and Charlie Blankenship went to the land of Clause Blankenship where the shooting later occurred and which was located about two and a quarter miles from the home of the father of the defendant. In going from the home of Charlie Blankenship to the home of Clause Blankenship, the defendant rode a mule owned by Glen Blankenship and Glen Blankenship rode the mule which they were trying to 'break'. After arriving at the home of Claude Blankenship they rode some distance down a nearby road where they met Lacy Blankenship and some of his companions. The defendant appears to have returned to the home of Claude Blankenship where he and Charlie Blankenship are supper and Glen Blankenship and Lacy Blankenship continued to ride the mules along the road. They later started back to the Claude Blankenship home, met the defendant somewhere on the road and with him joined Charlie Bankenship and Claude Blankenship who were near a barn on the Claude Blankenship land located about two hundred yards from his home. During their association together, until just before the shooting, there was no indication of any ill feeling between the defendant and Glen Blankenship who was known to his companions as 'Junior' or 'Bug' Blankenship; and he, the defendant and Charlie Blankenship had frequently spent Saturdays and Sundays together.

Soon after the defendant, Glen Blankenship, Charlie Blankenship, Claude Blankenship and Lacy Blankenship came together near the barn five or six ducks appeared on the farm. At that time Claude Blankenship said he would sell all the ducks for seventy five cents apiece but would not sell any unless he sold all of them. During this conversation the defendant said he would bet a dollar that he could shoot the 'head off' one of the ducks. Claude Blankenship told him not to do that. Then Glen Blankenship offered to bet the defendant that he 'could better' the defendant's shot. The bet was made and the defendant and Glen Blankenship each put a one dollar bill on the ground. Someone made a targer, consisting of a cigarette package on a board, and Lacy Blankenship placed it against some timber across a road between the barn and the target at a distance of about forty two feet from the road. The defendant and Glen Blankenship then went near the barn and the defendant stooped or 'hunkered down' to shoot. Glen Blankenship suggested that they stand and shoot. The defendant refused to do this and asked Glen Blankenship, who did not have a pistol or other firearm, what 'gun' he would use. He said he would shoot the defendant's 'gun' and the defendant replied 'No. I haven$ht got but three cartridges and I don't went to shoot all my carridges'. Glen Blankenship then said he would 'call the bet off' and that he would 'have the dollar' and the defendant answered: 'Well, I reckon not'. As to the conversation which then took place between Glen Blankenship and the defendant the testimony of the witnesses is somewhat conflicting, but it is undisputed that during this conversation between them the defendant, who was facing the target and pointing the pistol, which he held in his hand, in that direction, turned and pointed the pistol toward Glen Blankenship, Lacy Blankenship, Charlie Blankenship and Claude Blankenship, who were standing near each other, and at that time fired the shot which struck and instantly killed Glen Blankenship.

Charlie Blankenship, an eye witness produced by the State and its most important witness, on his...