State Of West Va. v. Bowles

• Decision Date: 17 March 1936
• Docket Number: (No. 8275)
• Court: West Virginia Supreme Court
• Parties: State of West Virginia v. Bernard E. Bowles

117 W.Va. 217

State of West Virginia

v.Bernard E. Bowles

(No. 8275)

Supreme Court of Appeals of West Virginia.

Submitted February 25, 1936.

Decided March 17, 1936.

1. Criminal Law

In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the accused beyond a reasonable doubt, though the evidence adduced by the accused is in conflict therewith. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.

2. Homicide

In a homicide trial, malice and intent may be inferred by the jury from the defendant's use of a deadly weapon, under circumstances which the jury does not believe afforded the defendant excuse, justification or provocation for his conduct. Whether premeditation and deliberation may likewise be inferred, depends upon the circumstances of the case.

3. Criminal Law

Where there is a conviction of murder in the second degree, error in an instruction given at the instance of the state with respect to murder in the first degree is immaterial.

Error to Circuit Court, Boone County. Bernard E. Bowles was convicted of murder in the second degree, and he brings error.

Affirmed.

Claude L. Smith and S. P. Riddle, for plaintiff in error.

Homer A. Holt, Attorney General, and Kenneth E. Hines. Assistant Attorney General, for the State.

Maxwell, Judge:

Bernard E. Bowles, convicted in the circuit court of Boone County of the murder in the second degree of Averil Sutphin and sentenced to penitentiary confinement of five years, prosecutes this writ of error.

Between eight and nine o'clock of the evening of September 8, 1934, Bowles shot Sutphin with a revolver in a confectionery in the village of Nellis, Boone County. Death resulted within probably less than five minutes.

Bowles, a constable, armed with a revolver, entered the confectionery a few minutes before the shot was fired. At the time of his entry the deceased was in the room, also several other persons. The number in the room was estimated to be from ten to twenty-five. Several of the patrons were seated at two small tables drinking beer. There was loud talking and laughter, but there, is no evidence of exceeding boisterousness. The defendant testified that O. C. Lewis, proprietor of the confectionery, had asked him to come there.

Almost immediately after he entered the store room where the confectionery was conducted, the defendant went to a table at which were seated three young men, Gay Helmick, Corbett Nelson and Bill Hyles. The defendant said in substance to Helmick, "Gay, didn't I tell you to go home some time ago? About two hours ago?" He then told these three young men, or boys, to go home. This is not controverted, but the evidence is not clear as to whether at that moment there was an exchange of words between the defendant and the deceased. However, instantly following the defendant's admonition to the boys at the table, Dorsey Sutphin, an older brother of the deceased, inquired of defendant what right he had to come in there and interfere with the boys, and asserted that they were not doing anything wrong. Whether this inquiry of Dorsey's was accompanied by a vile epithet directed by him to the defendant, the evidence is in conflict. The defendant then placed his hand on Dorsey's shoulder and told him to consider himself under arrest, and, in response to Dorsey's inquiry as to the reason therefor, told him that it was for interfering with an officer in the discharge of his official duty. Dorsey went then immediately to the counter, or tountain, at the rear of the room and bought a bottle of beer, which he there started to drink, and inquired of the proprietor, Lewis, whether the defendant had any right to come in there and interfere with patrons. While Dorsey was standing there the tragedy occurred between the defendant and the deceased. The evidence pertaining thereto is in conflict.

Witnesses for the state testified that the deceased, who was seated at the table other than the one at which the three named young men were seated, finished drinking a bottle of beer, placed the empty bottle on the table, arose to his feet, said to the defendant, in substance, "If you arrest my brother, you will take me, too," and started toward the door leading to the street or highway; that as he approached the door, empty-handed, the defendant, with his revolver in his hand, grabbed him; that in the ensuing tussle which took place practically in the doorway, the fatal shot was fired by the defendant while the deceased was leaning forward. They said that the defendant was dragging or pulling the deceased toward him.

The bullet entered the deceased's left cheek and ranged downward through the neck into the right side of the chest.

The defendant testified that after Dorsey Sutphin went to the counter for a bottle of beer, he (defendant) was fearful that Dorsey would attack him with a beer bottle, and therefore he backed toward the street door and stood there holding his revolver in his right hand and a large flashlight in his left; that he was not thinking about any trouble with the younger brother, the deceased. He proceeds: "So the first thing that I knew this boy they call Averil was right in my face, coming over-handed with a beer bottle, saying, 'God damn you.' I threw up my left arm like that (indicating) and my flashlight in my hand struck his wrist and the bottle flew out of his hand and hit the wall, or facing, or something or other, right above my head. Glass flew all over me, and he come right on towards me and clinched me, and when he come into me and clinched me naturally I came up with this other hand to shove him back. * * * And when I come up with my right hand he grabbed me right square across the gun. He wrung my hand and turned his head side ways like that (indicating) and made a groaning noise all at the same time. The gun fired, and, gentlemen, how it was done I couldn't tell you."

The defense is accidental homicide.

Three or four witnesses for the state testified that the bottle which crashed near where the defendant was standing was thrown from about the middle of the room. One or two of the witnesses expressed the belief that it was thrown by Gay Helmick.

In respect of the defendant's challenge of the sufficiency of the evidence to sustain a verdict of second degree murder, we are of opinion that there was presented primarily a question for jury determination. If the jury had believed the defendant's testimony as to the manner of the shooting, he should have been acquitted of criminality, but, instead of being governed by his testimony, the jury saw fit to give credence to the testimony of witnesses presented by the state. This, of course, was their province.

In a criminal case, a verdict of guilt will not be set aside on the ground that it...