State Of West Va. v. Peterson
| Decision Date | 07 December 1948 |
| Docket Number | (No. 10027) |
| Citation | 132 W.Va. 99 |
| Parties | State of West Virginia v. Bud Peterson |
| Court | West Virginia Supreme Court |
"In criminal prosecutions, while the burden of proving an alibi is on the accused, on account of its affirmative nature, yet this does not dispense with the necessity of the state's proving the actual presence of the accused at the place where, at the time when, the crime was committed, when personal presence is essential to the commission of the crime; and if, from the evidence, the jury have a reasonable doubt of the presence of the accused at the place where, at the time when, the offence was committed, they should acquit him." State v. Lowry, 42 W.Va. 205, Pt. 3, Syl.
In a criminal prosecution, if the evidence tends to show that an instrument sought to be admitted in evidence was used in the perpetration of the crime charged in the indictment, it may be admitted and produced for the inspection of the jury.
It is not reversible error in a prosecution for murder for the trial court, at the conclusion of the preliminary examination, bearing on the competency of an infant witness, to state in the presence of the jury:
In a criminal prosecution, the failure of the trial court to require that an infant witness be sworn before testifying on the merits of a case, though the witness has been "first duly sworn" before preliminary examination concerning his competency, does not constitute reversible error.
Though it is the duty of the trial judge in a criminal trial to pass on the competency of an infant witness to testify and personally to examine such witness on the question of his competency, his failure to do so is not reversible error, where, in the presence of the court, such preliminary examination was conducted by the prosecuting attorney in a painstaking manner, whereby the witness' competency was fully established.
In a trial for murder, in which defendant relies upon and introduces substantial evidence in support of the defense of alibi, and the court gives an instruction offered by the defendant fully covering the question of alibi, it is not error to instruct the jury that "* * * if the prisioner, with a deadly weapon in his possession, without any or upon very slight provocation, gives to another a deadly wound, the prisoner is prima facie guilty of wilful, deliberate and premeditated killing, * * *". Such instruction does not tend to impress the jury that the defendant was present at the time and place of the homicide.
Error to Circuit Court, Logan County.
Bud Peterson was convicted of murder in the first degree. To review judgment of sentence, he brings writ of error.
Affirmed.
Damron & Damron, W. F. Damron and 0. D. Damron, for plaintiff in error.
Ira J. Partlow, Attorney General, and W. C. Marland, Assistant Attorney General, for defendant in error.
Riley, President:
The defendant, Bud Peterson, charged with the murder of Bessie Wright on June 29, 1947, was convicted in the Circuit Court of Logan County of murder of the first degree without recommendation, and sentenced to be hanged. To this judgment of sentence, he prosecutes this writ of error.
Defendant came to the State of West Virginia from the State of Alabama in 1920. From 1925 until the time of his arrest for the alleged homicide, he had been continuously employed as a coal miner in Logan County, and when arrested he was living in the town of Riley, in Logan County, located approximately fifteen miles from the City of Logan, A bonus having been paid to the miners on June 28, 1947, Peterson, as well as other miners in Logan County, did not work.
At the trial, in order to controvert the State's position that defendant shot and killed decedent, defendant set up an alibi as his sole defense. It therefore becomes necessary to review the evidence in this case, bearing on the question of defendant's whereabouts at the time and place of the homicide.
According to the State's evidence, defendant was in the vicinity of the town of Riley from about two o'clock in the afternoon of June 28, 1947, until the time he was arrested about two o'clock in the morning of the following day. About midnight of June 28, he came to the home of William McCreery, whose home adjoins the house in which decedent, Bessie Wright, resided, and in which she met her death, and tried to borrow five dollars for the purpose of entering a poker game. Upon his request being refused, he stated that he would go to the Wright home and get the money "or raise sand." Defendant then left the McCreery home, and was seen by McCreery and his wife to proceed across the lot between the two houses and then go up on decedent's porch. Accords to McCreery, who is corroborated in substantial detail by his wife, defendant "hollered and knocked on the door". Receiving no answer, he yelled that if decedent did not open the door, "he would take an axe and knock the damn thing down." But still receiving no re- sponse, he tore the screen off the window, raised the window, and went into the house. McCreery said that he was able to see defendant because there was a light over a sign between the two houses, and defendant evidently had turned on a light in decedent's kitchen, so that the witness "could see in there." Mrs. McCreery testified that, by a light on decedent's porch, she could see defendant on the porch trying to push in the door leading into the house, and that he went to the window, pried off the screen, opened the window, and entered the house. Both witnesses testified that shortly thereafter they heard a shot, and after a short interval two more shots. In a short time deceased's two sons, George Wright, Jr., age seven, and Bowzer Wright, age five, came running across the lot to the McCreery house and informed the McCreery's that their mother had been shot. Thereupon, McCreery went to the decedent's home, where he found decedent's body lying on the floor of the upstairs bedroom. He then went to a nearby house, where decedent's estranged husband was living, and told him what had happened. The sheriff and an ambulance were called, the ambulance arriving about an hour later. At the trial, George, the older of the two boys, testified that he "saw" the defendant fire the shots which killed his mother.
Also according to the State's evidence, defendant was seen in a car driven by one Isaac Martin, and shortly thereafter, while defendant was walking along the road, he was arrested by a deputy sheriff, taken to the room in which decedent's body was lying, and then to jail.
One Dennis Bradford testified that he was an occupant of the Martin car at the time defendant was also an occupant, and shortly after defendant left the car, he found a gun, which he kept for some time until, upon request of the State Police, he turned it over to them.
According to all of the State's witnesses, the shooting occurred some time between 12:30 and 1:00 o'clock in the morning of June 29, 1947. The McCreerys testified that defendant came to their house about midnight.
Luther Creasey, who lived in a house next door to the McCreerys on the side opposite from that of the house occupied by Bessie Wright, testified that he heard three shots shortly before defendant was arrested; and he fixed the time of the shooting at exactly 12:45 a. m., at which time he set his watch by the radio. Richard Herald, deputy sheriff, testified that between 12:30 and 1:00 o'clock in the morning of June 29, he received a call concerning the shooting in the office of a justice of the peace at Man, and that he drove directly to the Wright house, arriving there before the ambulance.
On the other hand State's witness, Isaac Martin, testified that he, together with State's witness, Dennis Bradford, picked up defendant between 11:30 and midnight on June 28 not later than a little after midnight; that with Bradford sitting in the front seat and defendant in the back seat, they drove to Riley, where the ambulance and other cars were seen in the vicinity of the Wright house; and that defendant remained in the Martin car until after they left the scene of the homicide. Shortly after leaving the vicinity of the Wright house, defendant left the car at Martin's request. Witness then drove the car a short distance farther along the road with Bradford still sitting in the front seat. Then turning back toward the place where defendant had alighted, he saw defendant standing at the side of the road under arrest.
In general the testimony of defendant and State witnesses, Bradford and Martin, bearing on the question of defendant's whereabouts from the time he entered the car until his arrest coincides in substantial detail, but according to the State's evidence, it took more than an hour for the ambulance to get to the scene of the shooting, and, according to defendant's evidence, Martin picked up defendant around midnight on June 28, and arrived at the scene of the shooting after the arrival of the ambulance. So there is a clear conflict in the evidence as to defendant's whereabouts at the time of the homicide. As Martin testified that immediately after the defendant entered Martin's car at Martin's home at Braeholm, a distance which he estimated between one-half and three-quarters cf a mile from Riley, he proceeded directly to Riley, which he said required between fifteen and twenty-five minutes, and the fact that he arrived at the Wright home after the ambulance strongly indicates that he and Bradford did not encounter defendant until about an hour after midnight on June 29, in which event there would be almost an hour of defendant's time not accounted for, and the jury would have the right to believe that Martin and Bradford were mistaken as to the time they met defendant and that, in fact, defendant was taken into the Martin...
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