State Of West Va. v. Reppert

Decision Date05 April 1949
Docket Number(No. 10081)
Citation132 W.Va. 675
CourtWest Virginia Supreme Court
PartiesState of West Virginia v. Roy B. Reppert

1. Verdict

"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." Point 1, Syllabus, State v. Bowles, 117 W. Va. 217.

2. Manslaughter

"The offense of voluntary manslaughter involves an intent to kill; and an instruction or charge to a jury defining such offense, which omits any reference to intent as an element of the offense, is presumed to have been prejudicial to a defendant being tried on an indictment under which he might be convicted of that offense, and constituted reversible error." Point 4, Syllabus, State v. Foley, 131 W. Va. 326.

3. Courts, Charge of

The action of the court in instructing the jury, in a charge given in lieu of instructions in a criminal case, that the prisoner is presumed to be innocent until he is proved to be guilty beyond all reasonable doubt and that the presumption of his innocence is not a mere matter of form but is a substantial part of the law of the land and goes with him throughout every stage of the trial, but that it is the province of the jury to find from the evidence and the circumstances of the case whether such presumption should yield its strength and, if so, to what extent, and that it is the mission of such presumption to serve its purpose only until the contrary sufficiently appears from the evidence, subject to the requirement that the guilt of the defendant must be proved beyond all reasonable doubt, does not deprive the defendant of the protection of the presumption of his innocence and does not constitute reversible error.

4. Officers

An officer, in making a lawful arrest of a misdemeanant or in preventing his escape from lawful custody, is required to be the aggressor in order to discharge his legal duty to arrest the accused or prevent his escape from custody, and in the performance of such duty the law affords him special protection; and when he is attacked by a misdemeanant lawfully in his custody he is not required to retreat but may stand his ground and use such force as may be necessary to overcome the resistance offered by the prisoner even to the extent of taking the life of his assailant, if he believes, upon reasonable grounds, that he is in imminent danger of death or great bodily harm; and the refusal of the court so to instruct or charge the jury, when requested so to do by the defendant, in the trial of an indictment of such officer for murder, constitutes reversible error.

5. Courts, Charge of

When the evidence in a criminal case is sufficient to justify an instruction which contains a correct statement of law, denial of such instruction and refusal to incorporate its substance in a charge given by the court in lieu of instructions constitute reversible error.

6. Courts, Charge of

The statement that a person is presumed to intend that which he does or which is the necessary consequence of his act is properly embodied in a charge, given to the jury in lieu of instructions, in the trial of an indictment for murder, when such statement is justified by the evidence in the case.

7. Courts, Charge of

It is not error in a charge, given in lieu of instructions in a criminal case, to instruct the jury that the defendant is a competent witness in his own behalf, that his evidence should be given the same weight and consideration by the jury as that of other witnesses, and that the jury did not have the right arbitrarily to disregard his testimony or that of any other witness.

8. Courts

"Counsel necessarily have great latitude in the argument of a case, and it is, of course, within the discretion of the court to restrain them; but with this discretion, the appellate court will not interfere, unless it clearly appears from the record that the rights of the prisoner were prejudiced by such line of argument." Point 6, Syllabus, State v. Allen, 45 W. Va. 65.

Error from Circuit Court, Braxton County.

Roy B. Reppert was convicted of voluntary manslaughter, and he brings error.

Judgment reversed; verdict set aside; neiv trial awarded.

Lovins, Judge, concurring.

Fox, Judge, dissenting.

Wysong & Wysong, for plaintiff in error.

Ira J. Partlow, Attorney General and W. C. Marland, Assistant Attorney General, for defendant in error.

Haymond, President:

The defendant, Roy B. Reppert, was indicted by a grand jury of Webster County at the January Term, 1948, of the circuit court for the murder of Ralph Ware in that county in September, 1947. On the petition of the accused the case was removed to Braxton County, where it was tried in March, 1948. The jury returned a verdict which found the defendant not guilty of murder of the first or second degree but guilty of voluntary manslaughter and the defendant, by the judgment of the circuit court of that county, entered March 22, 1948, was sentenced to confinement in the penitentiary for a term of five years. To that judgment he obtained a writ of error to this Court.

Shortly before nine o'clock at night on Saturday, September 13, 1947, the defendant, who was then Chief of Police of the Town of Addison or Webster Springs, in Webster County, while on duty with another police officer, Charles B. Skidmore, using a station wagon in the central part of the town, received information that some drunken men were causing a disturbance in the northern end of the town located across Back Fork River, a branch of Elk River, and about one half mile from the business section. Each of these officers was wearing his uniform and was armed with a revolver at the time and, after going to a nearby restaurant to get a night stick about two feet in length which the defendant kept at that place, they proceeded in the station wagon across a road bridge over Back Fork River and up the river to a foot bridge at or near the location of the reported disturbance. Upon arriving at this point, the officers saw four or five men, all of whom ran except Ware and his companion, a man named Gregory. The officers got out of the station wagon and the defendant fired two shots from his revolver for the purpose of halting the men who were running from the policeman. These men escaped. At the time, Ware was sitting on a cross tie of the railroad nearby and Gregory was near him. Both were noticeably intoxicated and cursing loudly. They were placed under arrest, Ware by the defendant and Gregory by Skidmore, and all of them got in the station wagon. Neither Ware nor Gregory was handcuffed at that time. Gregory was put in the wagon by Skidmore, and Ware, who was a large man weighing about two hundred and sixty pounds, was, with some persuasion by both Skidmore and the defendant, placed in the vehicle. The arrests were made on or near a public street in a settled section of the town.

There were three parallel cross seats in the station wagon and a door in front and a door in the rear on each of its sides. Ware and Gregory were in the middle seat, Ware on the right and Gregory on the left. Skidmore and the defendant sat in the front seat, Skidmore on the left, as the driver, and the defendant on the right. With the four men occupying these positions, Skidmore drove the station wagon back across the river and through the business section for the purpose of placing Ware and Gregory in the jail, which is located on high ground above and some distance beyond the central part of the town. The street approach to the jail is around and to the right of the passageway which leads directly up the hill to it. For this reason and because of the intoxicated condition of Ware and Gregory, and the manner in which Ware was acting, the officers approached the jail with them in the station wagon instead of using on foot the walkway up the hill. At the time of his arrest Ware told the officers they were "not enough" to put him in jail and that he would kill both of them.

On the trip from the place of the arrest toward the jail Ware repeatedly abused and cursed Skidmore and threatened to kill him unless he, Ware, was taken to his wife. Ware continued to call Skidmore vile names and Gregory from time to time reminded Ware that he was being taken to jail and that the officers were not taking him home to his wife. Ware, however, made no attempt to carry out his threats until the station wagon came to within a distance of four hundred to five hundred feet from the jail at a point near the Methodist Church. At that place, and just after Skidmore had turned the station wagon into the street which led to the jail, Ware, who was unarmed, suddenly struck the defendant a violent blow apparently with his fist. When struck the defendant was sitting sideways on the front seat, a position in which he had been riding during the trip and which enabled him to look at Ware in the seat behind him, and he had his night stick in his right hand. The force of the blow sent the defendant against the front door on his right and caused it to open. The defendant was knocked through the opening and he clung to the side of the station wagon which Skidmore stopped in a distance of a few feet. Skidmore immediately got out on the left side, and came around the front of the car to join the defendant who was outside it on the right side. The defendant told Skidmore to handcuff Ware. Skidmore opened the rear right door and while standing in the street, with the upper part of his body extending into the car through the open doorway, attempted to put handcuffs on Ware who was in the space between the middle seat and...

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