CHARLESTON, State v. Abbott.
| Decision Date | 04 March 1875 |
| Citation | 8 W.Va. 741 |
| Court | West Virginia Supreme Court |
| Parties | CHARLESTON,State v. Abbott. |
1. The ninth section of chapter thirteen, of the Code of 1868, provides
that "the repeal of a law, or its expiration, "by virtue of any provision contained therein, shall not affect any offense committed, or penalty or punishment incurred before the repeal took effect or the law expired, save only that the proceedings had shall conform, as far as practicable, to the laws in force at the time such proceedings take place unless otherwise specially provided; and that if any penalty or punishment be mitigated by the new law, such new law may, with the consent of the party affected thereby, be applied to any judgment pronounced after it has taken effect.' The said Code of 1868 took effect on the 1st day of April 1869* On the 3d day of November 1873, A. was indicted in the county of Kanawha by the grand jury, then attending the circuit court of said county, for the murder of G. on the 11th day of September 18G1, in said county, and the evidence shows that the killing was done at that time. At the time the killing was done the punishment prescribed by law was death.
The nineteenth section of chapter one hundred and fifty-nine of the code of 1868, provides that &c.
On the 10th day of November 1873, A. plead not guilty to the indictment, and on that day there was a jury selected, empanelled and sworn according to law, to try the cause in said circuit court. The jury found A. guilty of murder in the first degree, and found that he be punished by confinement in the penitentiary; and the court, upon the verdict of the jury, rendered judg- ment that A. be confined in the penitentiary of the State for and during his life. Held; that it was error in the court, in the trial of A., to apply the provisions of the Code of 1868, authorizing the mitigation of the punishment of murder in the first degree to confinement in the penitentiary during life without the consent of A. given in court and entered of record; and that without such consent of A., given in court and entered of record, before the verdict of the jury was received and recorded by the court, the punishment prescribed by the said ninth section of chapter thirteen of the Code of 1868, could not be applied by the jury or court. And in the absence of such consent, given by A. in court and entered of record, as a part of the proceedings in the causer the punishment prescribed by the law, in force at the time the killing took place, should have been applied to the case.
Such consent of A. may be given and entered of record in court as part of the proceedings in the cause before the jury is empanelled and before the verdict of the jury is received and recorded. It would be the better and the safest practice for the court to ask A. to elect before, or at the time the jury is empanelled, under which of the said laws he desires and elects to be tried, and have applied to his case. Still, if A. did not then elect and consent to be tried under the new law, he should bo allowed, by the court, to so consent at any time before the verdict of the jury is received and recorded by the court.
The record of the proceedings of an examining court are not necessarily a part of the proceedings of the trial of an indictment for felony in the circuit court. And if the defendant in such a case does not claim the benefit of an examining court, before trial in the circuit court, or raise the question before the circuit court, he cannot do so in the appellate court for the first time.
4. It was error in the circuit court to refuse to permit A., the defend-
ant, at the trial, to prove his declarations made at the time of the shooting, which caused the death of the party killed. Such declarations, made at that time, are a part of the res gestcend should be allowed to go to the jury to have such weight and credit as, under the circumstances, they may be entitled to, in connection with the other evidence, circumstances and facts.
5. The State having proved, as evidence against the defendant, before
the jury, some words spoken by the defendant to the witness, who was present at the shooting, a few moments before the shooting, upon well established principles the defendant was entitled to prove all he said to the witness in that conversation at that time.
and it is claimed upon the evidence that the crime committed is murder in the first degree, because it is "murder by lying in wait," it is for the jury to determine from all the circumstances and evidence whether the murder is "murder by lying in wait," or whether the murder is murder in the first degree for any cause embraced by the statute; or murder in the second degree, or voluntary or involuntary manslaughter, or whether the defen. dant is guilty of any offense embraced by the indictment, though the court may instruct the jury as to matters of law relevant to the case.
8. The general rule, subject, perhaps, to some exceptions, is that, in the
trial of indictments for homicide, evidence of previous threats made by the deceased against the prisoner and communicated to him, before the killing, is admissible, without reference to the question whether there is evidence tending to show that at the time of the killing the deceased was doing some overt act manifesting a present intention to carry such threats into execution; or without reference to the question whether there was proof that the defendant may have acted upon a reasonable belief that he was in danger of death or great bodily harm at the hands of the deceased. Ordinarily the judge cannot assume whether there is evidence tending to prove such a state of facts as would make testimony of such communicated threats relevant; because this would be to decide on the effect of the evidence upon a material question in the case, a matter which belongs to the jury, What constitutes such overt act as will warrant a person in slaying his enemy in his own defense, is a question for the jury, to be resolved according to the circumstances of each particular case. No general rule can be laid down upon the subject.
9. Previous threats or acts of hostility, however relevant they maybe
will not justify a person in seeking and slaying his adversary.
10. To excuse the slayer, he must act under an honest belief that it is necessary, at the time, to take the life of his adversary in order to save his own; and it must appear that there was reasonable cause to excite this apprehension.
11. When such threats and acts of violence, as above named, have, recently before the killing, been made by the person killed, against the accused, and communicated to him, before the killing, it is proper to permit the defendant to prove that on other occasions, recently before the killing, the said deceased threatened to others upon more than one occasion to kill the defendant on sight, for the purpose, at least, of showing the state of feeling of the deceased
Abbott. towards the defendant, although it does not appear that such
threats last named were communicated to the defendant, before the killing.
12.It was not error inthe court to refuise to instruct the jury in this case, as the case is presented, that if, upon a consideration of all the evidence, they have a reasonable doubt as to whether the plea of self defense is made out, it is their duty to acquit the defendant.
13. It is error in a court, in a case of felony, to give to the jury instructions which are not relevant to the evidence, and which may mislead the jury to the prejudice of the defendant.
14. In criminal cases, if there be reasonable doubt of the guilt of the defendant, the jury are to give him the benefit of such doubt.
Writ of error granted on the petition of the defendant below to a judgment on the verdict of the circuit court of Kanawha county, rendered on the 13th day of December, 1873. The case is fully stated in the opinion of the Court.
The Hon. Joseph Smith, judge of said circuit court, presided at the trial below.
Smith & Knight and Mollohan & Nash for the appellant.
Attorney General Mathews for the State.
Haymoxd, President:
In considering this case I will, for the sake of convenience, designate the plaintiff in error as the defendant, he being the defendant in the court below.
The defendant, (St. Clair Abbott) was on the 3d day of November, 1873, indicted by the grand jury of the county of Kanawha, then attending the circuit court of said county, for the murder of Augustus Grass. The language of the indictment was as follows, to-wit: "That St. Clair Abbott on the 11th day of September, 1861, in the said county of Kanawha, in and upon the body of one, Augustus Grass, feloniously, wilfully and of his malice aforethought, did make an assault; and that the said St. Clair Abbott a certain rifle gun there and then charged with gun-powder, and one leaden bullet, which rifle gunhe, the said St. Clair Abbott, in his right hand then and there had and held, then and there feloniously, wilfully and of his malice aforethought, did discharge and shoot off to, against, and upon...
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