State Of West Va. v. Jones, (No. 9744)

• Citation: 128 W.Va. 496
• Decision Date: 19 February 1946
• Docket Number: (No. 9744)
• Parties: State of West Virginia v. George Thomas Jones
• Court: Supreme Court of West Virginia

128 W.Va. 496

State of West Virginia

v.George Thomas Jones

(No. 9744)

Supreme Court of Appeals of West Virginia.

Submitted January 9, 1946.

Decided February 19, 1946.

1. Homicide

Evidence introduced in a trial of a person charged with murder which shows that defendant engaged in an altercation and fight with deceased, during which defendant threatened to kill deceased, left the place of the encounter, procured a deadly weapon, returned and killed his adversary therewith, is sufficient on which to predicate an inference that the killing was malicious.

2. Appeal and Error

An affidavit purporting to show the disqualification of a member of the jury, not made a part of the record by bill of exception or certificate of evidence in accordance with Code, 56-6-35, 36, will not be considered on writ of error.

Error to Circuit Court, Raleigh County.

George Thomas Jones was convicted in the criminal court of murder in the second degree, and the circuit court affirmed the judgment, and he brings error.

Affirmed.

W. A. Thornhill, Jr., for plaintiff in error.

Ira J. Partloiv, Attorney General, and Ralph M. Hiner, Assistant Attorney General, for defendant in error.

Lovins, Judge:

George Thomas Jones was convicted in the Criminal Court of Raleigh County of murder in the second degree for the killing of Robert Tate, and was sentenced to the peniteniary for a term of five to eighteen years. The circuit court of said county affirmed the judgment, and, on defendant's petition, this Court granted a writ of error.

Defendant met deceased in the Village of Edwight in the afternoon of Easter Sunday, 1944, and they began to drink intoxicants at a residence in that village. On leaving the place where the liquor was purchased, they quarreled about a trivial matter, which resulted in the deceased striking defendant with a rock or piece of coal. Deceased, at the solicitation of the accused, agreed to cease fighting and started to leave the scene of the fight, at which time defendant struck deceased knocking him down. Deceased arose and procured two rocks, renewed the quarrel, but did not strike defendant. Thereupon, defendant went to the home of one Titus, located near the scene of the fight, remained there six or eight minutes, procured a knife, and returned to the place where deceased was standing with the rocks in his hand. At this time a son of deceased, about eighteen years of age, came on this scene, and persuaded deceased to relinquish the rocks. Thereupon defendant attacked deceased and inflicted fatal knife wounds in deceased's back and chest. Defendant cleaned the blood from his knife, threw it away, and started away from the scene of the killing, but shortly thereafter was arrested. There is testimony to the effect that defendant, during the altercation and immediately before the fatal knife wounds were inflicted, threatened to kill the deceased.

Defendant, who lives in an adjoining village, insists that he was on his way home at the time of the fight, but it is shown that although he could have reached his home by using the road on which he was traveling with deceased at the commencement of the fight, it was a circuitous route. A more direct route lay in the opposite direction.

The jury panel on the voir dire were questioned as to whether either of them was a member of the grand jury which returned the indictment. A member of the panel who did not serve as a member of the jury that convicted defendant, responded that he was uncertain whether he was a member of said grand jury. No other member of the panel made response to that 'question. The panel was also questioned as to whether any member thereof had formed or expressed an opinion as to the guilt or innocence of the defendant, and whether any member thereof was sensible of any bias or prejudice in the case, to which question none of them made any response.

After the adjournment of the term at which defendant was convicted, his counsel, in support of a second motion to set aside the verdict, filed his own affidavit purportedly showing that W. A. Fisher was a member of the grand jury that returned the indictment, and was also a member of the petit jury that found the verdict. The affidavit was filed by order entered in vacation. Defendant contends that the trial court erred: (1) In admitting evidence offered by the State over his objection and in rejecting proper evidence offered by him; (2) in refusing to give six instructions tendered by him; (3) in giving two instructions tendered by the State over his objection; (4) in refusing to set aside the verdict, when it was ascertained that a member of the petit jury which returned the verdict had likewise served as a member of the grand jury which found the indictment; and (5) in overruling his motion in arrest of judgment. Other errors assigned are general, and call for no discussion.

Defendant in his brief does not point to any instance wherein the trial court erred in its rulings on the admission or rejection of evidence. Examination of the record herein fails to disclose that the trial court rejected legal evidence or admitted illegal evidence over objection.

Instruction No. 1, tendered by defendant and refused by the court, reads as follows: "The court instructs the jury that under the law and the evidence, you cannot find defendant, George T. Jones, guilty of murder in the first degree nor of murder in the second degree." Defendant's contention is predicated on the proposition that the evidence adduced fails to show that he was actuated by malice in killing deceased. Malice, express or implied, is an essential element of murder in the second degree, and if absent the homicide is of no higher grade than voluntary manslaughter State v. Paul Roush, 95 W. Va. 132, 120 S. E. 304; State v. Hurst, 93 W. Va. 222, 116 S. E. 248; State v. Galford, 87 W. Va. 358, 105 S. E. 237. The evidence clearly shows that defendant and deceased agreed to stop fighting and. thereafter, when deceased turned away, defendant hit deceased "to get even with him"; that deceased arose with two rocks in his hands; that defendant left the scene of the fight, procured his knife, and returned to the fray. Certainly, the defendant could have abandoned the fight and gone his way when he went to obtain a weapon. Moreover, during the altercation defendant threatened to kill deceased. The killing was intentionally done with a deadly weapon. The fatal encounter was not provoked by the deceased, and the use of the weapon was unjustified in the circumstances...