State Of West Va. v. Corey

• Citation: 114 W.Va. 118
• Decision Date: 03 October 1933
• Docket Number: (No. 7715)
• Court: Supreme Court of West Virginia
• Parties: State of West Virginia v. Joe Corey

114 W.Va. 118

State of West Virginia

v.Joe Corey

(No. 7715)

Supreme Court of Appeals of West Virginia.

Submitted September 21, 1933.

Decided October 3, 1933.

1. Homicide

Where accused assaulted and killed decedent and a third person at the same time, evidence of a previous threat made by accused against the third person is admissible as tending to disclose the animus actuating his killing of decedent.

2. Homicide

As a general rule, an expressed intent of an accused to kill a certain person is not pertinent on his trial for killing another, but it may become pertinent and admissible under circumstances showing connection between the threat and subsequent conduct of accused, and where both persons are killed at the same time in pursuance of an evinced intent to kill both, reference in an instruction to a decision by the accused to kill one or the other must be deemed tantamount to a reference to a decision to kill both.

3. Criminal Law

"A verdict of guilty in a criminal case will not be reversed here because of error committed by the trial court, unless that error is prejudicial to the accused." State v. Rush, 108 W. Va. 254, 150 S. E. 740.

Error to Circuit Court, Kanawha County. Joe Corey was convicted of first-degree murder, and he brings error.

Affirmed.

Salisbury & Lopinsky and W. W. Wertz, for plaintiff in error.

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

Maxwell, President:

To an order of the circuit court of Kanawha County affirming the judgment of the intermediate court of said county imposing sentence of death, on Joe Corey upon conviction of first degree murder of Katherine Ghiz, the defendant prosecutes this writ of error.

At about eight-thirty o'clock in the evening of July 11, 1932, in the store of Saleem Haddad at the corner of Delaware and Virginia Streets in the city of Charleston, the defendant shot to death both his wife, Ada Corey, and Katherine Ghiz.

The women came to Charleston about six o'clock the evening of the tragedy and went to a private home on the opposite side of the street from the Haddad store. Mrs. Corey and the defendant had not been living together as husband and wife for some months. She lived in Huntington, he in Charleston. Mrs. Ghiz lived in the city of Logan.

The defendant went to the Haddad store; soon after eight o'clock in the evening. Only Mrs. Haddad and her young niece were there. Presently, Mrs. Haddad answered a call on the telephone which was located just behind a partition across the back part of the store, the partition not extending to the ceiling of the room. Mrs. Haddad is a Syrian woman and sometimes has difficulty understanding our language. Not being able to comprehend what was said to her over the telephone, she asked Corey to take the receiver. He did so and told her the call was for Katherine Ghiz. and that she was at the priest's house across the street. Mrs. Haddad immediately sent her niece for Mrs. Ghiz, who, with Mrs. Corey, came at once to the store with the girl. The defendant remained in the rear of the room and as Mrs. Haddad led the way for the women back through the store to show them the location of the telephone, he indicated to her by gesture that she should not disclose that he was there. Mrs. Ghiz approached the telephone. Corey emptied six chambers of a revolver at her. As she begged for mercy he said, according to Mrs. Haddad: "You tell me please? I will kill you first. I will let you die first." Four balls penetrated her body. She fell dead. Casting aside the revolver he had used, he drew from his pocket another one which he directed at his wife. Four bullets were fired at her and twe cartridges failed to explode. To her he said: "You want a divorce? Here's your divorce." After she fell he used the second revolver as a bludgeon with which he beat her face as she lay prostrate on the floor. An officer rushed in from the street and arrested Corey before he had ceased beating his wife. She died of her wounds.

Comment on the horror of this affair would be superfluous.

There was no denial of the homicides. The defenses were (1) that the defendant was insane at the time of the tragedy, and (2) "that prior to and at the time of the commission of the offense, he was intoxicated to such an extent that he was incapable of entertaining the elements of murder in the first degree: wilfullness, deliberation and premeditation, and did not become so intoxicated for the purpose or with intent of committing the acts complained of."

As to insanity, there was a sharp conflict of testimony. For the defense, both lay and medical witnesses testified that in their opinion Corey was insane when he killed the women. But several physicians and numerous lay witnesses called in rebuttal by the state testified that in their opinion the defendant was sane. This conflict presented a question for jury determination. In our opinion the evidence justified the belief that the defendant was sane when the homicides were committed.

As to intoxication, there is no testimony on behalf of the defendant that he was in fact intoxicated at the time he committed the crime, though evidence in his behalf tends to show that he had been drinking intoxicating liquor that day. Several witnesses called by the state testified that immediately after the homicide they observed no indication that Corey was intoxicated. Mrs. Joe Solomon testified that the defendant talked with her at her home on Virginia Street about onehalf hour before the tragedy and that he was all right then, and that though he was close enough to her for her to have smelled fumes of liquor if he had been drinking, she did not detect any odor of intoxicants. The issue of drunkenness was likewise for jury determination, and, in our opinion, the jury was warranted under the evidence in resolving that question also against the defendant.

Numerous errors were assigned. We shall discuss those of which consideration seems necessary.

Over objection of defendant, a witness, J. W. Perry, an attorney of the city of Huntington, was permitted to testify that two or three months prior to the double homicide, the defendant told the witness at his office in Huntington that he (Corey) was going to kill his wife. The basis of the objection is that on a trial of the defendant for the murder of Katherine Ghiz it was irrelevant, improper and prejudicial to admit evidence of a threat by the defendant against the life of his wife. The defendant consummated his threat, and more. The double tragedy was one affair. "While ordinarily threats made by an accused against one person are not admissible on the trial of an indictment for the murder of another, that rule cannot in reason be applied where there is direct connection between the threat and the crime committed.

Numerous cases disclose that on the trial of an accused for a crime against a particular person, it is proper to admit evidence of the accused's threats against another, provided, of course, there is connection between the threat and the crime. State v. Fox, (Idaho) 16 Pac. (2d) 663; People" v. Craig, (Cal.) 44 P. 186; Rawlins v. State, (Ga.) 52 S. E. 1.

In People v. Wilt, (Cal.) 160 P. 561, which involved the trial of accused under an indictment for murder, the court held: "Where accused assaulted decedent and a third person, and the third person was wounded by a sho-; fired by accused at the time decedent was shot by accused, ev: dence of previous threats made by accused against the third person was admissible under the rule that while threats against decedent are admissible to show malice, threats against another person are only admitted under circumstances showing some connection with the injury inflicted on decedem;." A fortiori is this true where the accused kills not only the person threatened but another at the same time.

In our judgment, the trial court committed no error in permitting the witness Perry to testify of the threat made by Corey against his wife. It follows that the incorporating of this threat in several hypothetical questions propounded to different witnesses by the state on the question of the mental condition of the accused at the time of the homicides was not error.

In a hypothetical question propounded by the state to a defense witness, Dr. Philip Jaisohn, among other things, it was recited "that on the day of the shooting he (defendant) inquired on two different occasions of the chauffeur who had brought Mrs. Ghiz and Mrs. Corey from Logan to Charleston, where they were and if they were not in Charleston.'' This is alleged to be prejudicial error because it appears from the testimony of the chauffeur that Corey's two inquiries related only to the whereabouts of his wife. We are impressed that this inaccuracy in the said recital in the hypothetical question was not prejudicial to the defendant in the light of the testimony that shortly before the hour of the tragedy the defendant endeavored to ascertain the whereabouts of Katherine Ghiz. Mrs. Joe Solomon, above mentioned, said that when the defendant came to her home about a half hour before the shooting, he requested her to call two different places and make inquiry if "Katy" Ghiz was there. That he was looking for Mrs. Ghiz as well as his wife there seems no doubt.

Several hypothetical questions propounded by the state to physicians contain the assumption that prior to the tragedy there was trouble between Corey and his wife. It is urged that the record does not justify this assumption. We think it does. A defense witness, Mrs. Lee Ray Smith, testified that in the months of April and May preceding the tragic events which gave rise to this case, she saw the defendant frequently at the home of his sister, Mrs. Aide, on Washington Street, in the city of Charleston. The witness said: "He (defendant) was very, very nervous, very upset. Very upset over his trouble with his wife." The fact that there had been trouble between the defendant...