State Of West Va. v. Corbin

• Decision Date: 17 March 1936
• Docket Number: (No. 8283)
• Citation: 117 W.Va. 241
• Parties: State of West Virginia v. Frank Corbin
• Court: West Virginia Supreme Court

117 W.Va. 241

State of West Virginia

v.Frank Corbin

(No. 8283)

Supreme Court of Appeals of West Virginia.

Submitted February 26, 1938.

Decided March 17, 1936.

1. Criminal Law

Under the provisions of Code, 58-4-7, where a circuit court has declined to entertain a writ of error to the judgment of an inferior tribunal, an application for a writ of error may be made to this court regardless of whether the order of rejection in the circuit court recites that such rejection was because the judgment of the inferior tribunal was deemed to be plainly right.

2. Criminal Law

To permit, over objection, a prosecuting attorney in his opening statement to the jury in a felony case to state that, under the law, the prosecution is not permitted to show the bad reputation of the accused unless the defense first introduces proof of his good reputation, but that in the event the defense opens the question of reputation, the state would then produce testimony on the subject, is tantamount to putting the reputation of the accused in issue over his objection, and constitutes reversible error.

3. Criminal Law

Evidence tending to sustain an inference that is dependent for its relevance upon another inference to be drawn from the testimony should be excluded as too remote.

4. Criminal Law

Where it becomes relevant to show that a certain statement or declaration was made, regardless of the truth or falsity of the statement or declaration itself, such proof is not hearsay and should be admitted. It is evidence of what, in some of the books, is termed a "verbal fact."

Error to Circuit Court, Harrison County.

Frank Corbin was convicted of voluntary manslaughter, and he brings error, and the State moves to dismiss the writ of error.

Reversed and remanded.

Hatcher, President, and Maxwell, Judge, dissenting in part; concurring in result.

A. J. Rosenshine and Homer Strosnider, for plaintiff in error.

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

Kenna, Judge:

Frank Corbin was convicted in the Criminal Court of Harrison County of voluntary manslaughter, and was sentenced to five years imprisonment. To the judgment of the Circuit Court of Harrison County, declining to grant a writ of error, he prosecutes this writ of error.

The first question to be disposed of is the state's motion to dismiss this writ of error. The order of the Circuit Court of Harrison County, declining to entertain defendant's application for a writ of error from that court, declined the writ "agreeable to the provisions of section 7, article 4, chapter 58 of the Code of West Virginia." The judgment of the Criminal Court of Harrison County was entered on the 26th day of December, 1934, and the order of the circuit court, refusing to award a writ of error, was entered on the 8th day of May, 1935. It will be observed that the order refusing the writ of error was entered after the expiration of the limitation of four months within which a writ of error from the circuit court could be applied for, and at a time when the application for a writ of error from the circuit court could not be renewed. The contention of the state on its motion to dismiss is that since the order refusing the application for a writ of error from the circuit court does not state that the application was refused because the judgment of the criminal court was plainly right, the order of the circuit court was not a final order which would form the basis for an application for a writ of error from this court, and hence that the writ of error here was improvidently awarded. The state relies upon the cases of Truslow v. Payne, 90 W. Va. 149, 110 S. E. 546, and Blumberg v. Snyder, 90 W. Va. 145, 110 S. E. 644. These cases are authority for the proposition that in order to render final an order of a circuit court, declining a writ of error to the judgment of an inferior tribunal, the order of the circuit court must state that the judgment of the inferior tribunal is deemed by it to be plainly right, and that the refusal of the writ of error is for that reason. However, the rule laid down in the two cases referred to appears to have been modified by the later holding in the case of Williams V. Irvin, 101 W. Va. 708, 133 S. E. 390, in which the second point of the syllabus, with emphasis supplied, reads as follows: "The law and rules governing this court in matters of appeals from circuit courts govern the proceedings on appeal, writs of error or supersedeas in civil cases from the Common Pleas Court of Cabell County to the Circuit Court of that County. An order refusing a writ of error is not final, unless refused on the ground that the order or judgment of the inferior court is plainly right, or the period of limitation for the writ has expired." It will be observed that according to the Williams case, either one of two things is held to render final the order of a circuit court declining a writ of error to an inferior tribunal, namely, a refusal to entertain the writ of error on the ground that the order or judgment of the inferior tribunal is plainly right, or the expiration of the time within which an application for a writ of error to the circuit court may be made. Here the limitation had expired before the refusal of the writ in the circuit court, bringing this case plainly within the rule laid down in the Williams case.

However, we are of the opinion that the question raised in the case at bar does not depend upon the rule to be deduced from the three cases mentioned for the reason that, since their decision, the statute controlling writs of error in circuit courts to the judgments of inferior tribunals has been materially amended. That statute is now Code, 58-4-7, and, with emphasis supplied, reads in part as follows:" * * * but in any case where the circuit court or judge rejects the petition, the petition and order of rejection, together with the record of the cause, may, within four months from the date of the order of rejection, be presented to the Supreme Court of Appeals, or any judge thereof in vacation, for an appeal from, or writ of error or supersedeas to, such order of rejection, * * *." The language quoted was not contained in the statute when the cases relied upon by the state were decided. It is perfectly plain that "in any case where the circuit court or judge thereof rejects the petition," whether stated to be because the judgment of the inferior tribunal is deemed to be plainly right or not, an application can be made to this court for a writ of error to the judgment of the circuit court. The legislation in question, we deem clearly authorized by section 3, of Article VIII of the Constitution of this state, defining the appellate jurisdiction of this court. That section, after conferring appellate jurisdiction in certain specified instances, concludes as follows: "* * * and such other appellate jurisdiction, in both civil and criminal cases, as may be prescribed by law." Therefore, we think there can be no doubt of the power of the legislature to enact the provision quoted from Code, 58-4-7. It is said that the rule that "in any case" where a writ of error to an inferior tribunal has been refused by the circuit court, an application may be made to this court, will result in circuit courts giving only perfunctory attention to applications there made for writs of error to inferior-tribunals. It is doubtful whether this court should entertain the presumption that circuit judges will not faithfully and fully perform the duties assigned to them, but if it be admitted that they might or would, the question involved is one of legislative policy, not one to be determined by what this court believes the law in that respect should be. The motion to dismiss is, therefore, refused.

The defendant, at the time of trial, was a man 45 years of age and was a motorcycle police officer of the town of Nutter Fort, a small place located near Clarks- burg. In addition to his duties as a police officer, he performed the functions of a street commissioner and also, from time to time, received payment of their water bills from residents of the town. He entered upon this employment March 16, 1934, and, prior to that time, had spent a number of years as a special officer for a local chemical company, had served five years as chief of police of the town of Lumberport, and had been a deputy sheriff of Harrison County during the incumbency of Ross F. Stout as sheriff. He first met the deceased, William Wilson, about the middle of the summer of 1934.

On the afternoon of November 7, 1934, a telephone summons was received by the defendant, Corbin, who was at the mayor's office, in the town of Nutter Fort, to come at once to the home of Enoch Longenette on the corner of Maryland and Washington Avenues. The message came from Mrs. Longenette. Corbin got on his motorcycle at once and went to the Longenette home, arriving there in three to five minutes. He drew up at the side of the house on Washington Avenue near the sidewalk going up to the back porch. As he did so, Mrs. Longenette informed him that she wanted him to go into the house and take Bill Wilson away; that he was in there drunk, had a gun and had threatened to kill her. Corbin took his blackjack from his right hip pocket, went up onto the porch and into the house.

The concrete walk from Washington Avenue to the back porch extends across the entire width of the house, the back porch being on the corner of the house away from Washington Avenue. Turning at right angles to the left to go up to the steps onto the back porch, the entrance to the kitchen of the house is at the left after the back porch has been reached, so that in entering the kitchen door a person would be facing Washington Avenue. There was a screen on the kitchen door that opened outward and the door itself opened inward, the hinge being on the left. Going into the door, the rear wall of the house is on the left, and on the right for a distance of...