State Of West Va. v. Jones.

• Decision Date: 18 November 1882
• Citation: 20 W.Va. 764
• Parties: State of West Virginia v. Jones.
• Court: West Virginia Supreme Court

20 W.Va. 764

State of West Virginia

v.Jones.

Supreme Court of Appeals of West Virginia.

Submitted October 28, 1882

Decided November 18, 1882.

1. Upon a trial for shooting with intent to kill, the use of a deadly weapon being proved, and the prisoner relies upon self-defense to excuse him for the use of tlie weapon, the burden of showing such excuse is on the prisoner, and to avail him he must prove such defense by a preponderance of the evidence, (p. 767.)

2. He may show it by his own evidence, the evidence adduced by the prosecution, the circumstances arising out of the case, or by all of these modes, (p. 767.)

3. In such a case it is error to instruct the jury, that if they have any reasonable doubt, whether the prisoner under the circumstances was excusable for the use of the deadly weapon, they must acquit him. (p. 769.)

4. A judgment and verdict will be set aside and a new trial awarded the prisoner, where an instruction was given, which was calculated to confuse the jury and mislead them to the prejudice of the prisoner, (p. 770.)

Writ of error to a judgment of the circuit court of the county of Harrison, rendered on the 20th day of May, 1882, upon an indictment for feloniously and maliciously shooting with intent to kill, in which case the State of West Virginia was plaintiff and Frank Jones was defendant, allowed upon the petition of said Jones.

Hon. A. Brooks Fleming, judge of the second judicial circuit rendered the judgment complained of

The facts of the case are fully stated in the opinion of the Court.

James Morrow, Jr., for plaintiff in en or cited: 1 Green. Ev. §§ 100, 101; 7 Bush. 124; 8 Mich. 150; 25 Gratt. 887; 5 Yerg. 459; 2 Head 217; 2 Duvall 828; 8 Bush. 481; 41 N. Y. 360; 7 J. J. Mar. 478; H. & T. 345.

Attorney-General Watts, for defendant in error cited: 1 Wharf. Cr. Law (8th ed.) § 488 and note 2; 25 Gratt. 887; 8 W. Va. 741; State v. Cain, supra; State v. Robinson, supra.

Johnson, President, announced the opinion of the Court:

This is a writ of error to a judgment, of the circuit court ot Harrison county, rendered on the verdict of a jury, winch found the prisoner guilty as charged in the indictment, or shooting John AY. Patton, with intent to kill him. The hill of exceptions signed by the court shows, that the prisoner by his counsel asked the following instruction which was shown, by the evidence to have been relevent: "If the jury believe from the evidence, that the accused had committed an assault in an assemblage, immediately or recently before the affray, in which the shot was fired, which is mentioned in the indictment, and that the accused was at the time of said affray, making his way on his horse, away from said assemblage, and whilst so withdrawing himself, the accused was pursued and overtaken by Patton, and others with threatening exclamations, and that he was seized and dragged violently from his horse by Patton whilst trying to escape, and thereupon surrounded by a crowd, or number of persons, who had pursued him and who used threatening exclamations; and if the jury further believe from the evidence, that under these circumstances, the accused had reasonable cause to believe and fear, and that he did believe and fear, that great bodily harm was about to be inflicted upon him; and that under the influence of said belief and fear, he fired the said shot with intent to defend and protect himself, then he is not guilty. And if the jury have a reasonable doubt, as to whether he may not have fired said shot under the influence of such belief and fear, and with such intent, he should have the benefit of such reasonable doubt, and should be acquitted."

The court refused to give the instructions as asked, but gave them with the following modification to the last clause thereof: "And if the jury have a reasonable doubt as to whether he may not have fired said shot under the influence of such actual, and imminent danger, belief and fear, and with such intent, he should have the benefit of such reasonable doubt, and should be acquitted." It is assumed by counsel for prisoner, that where, the defendant relies upon self defense as a justification of his act, for which he is indicted and there is evidence tending to prove, that he fired the shot to protect himself, that the law will compel the trial court at his instance to instruct the jury, that, "if they have a reasonable doubt, that he had reasonable grounds to believe and did believe he was in imminent danger, of losing his own life, or suffering great bodily harm at the hands of the assailant, then he is entitled to the benefit of such doubt, and should be acquitted." In other words, "if the jury have a reasonable doubt that he fired the shot in self defense," they should acquit him.

It is true that both Wharton and Bishop, in their works on criminal law, so conclude. The same principle is held to be law, in State v. Patterson, 45 Yt. 308; People v. West, 49 Cal. 610; State v. Porter, 84 la. 131; State v. Morphg, 33 la. 270; State v. Fetter, 32 la. 49; State v. Tweedy, 5 la. 434. In the last named case it was held, that when the evidence in a criminal case relates solely to the original transaction and form a part ot the res gestae, the defendant has a right to claim, that the proof made does not manifest his guilt; because it is left in. doubt whether the act was committed under unjustifiable circumstances; hence where the matter of excuse or justification of the offense charged, grows out of the original transaction, the defendant is not driven to the necessity of establishing the matter in excuse or justification, by a preponderance of evidence, and much less beyond a reasonable doubt, on the trial of an indictment for murder, proof of the killing will not change the burden of proof, where the excuse or justification is apparent on the evidence offered by the prosecution, or arises out of the circumstances attending the homicide." On the contrary Mr. Foster in his Crown Law page 290, says: "Whoever would shelter himself under the plea of provocation, must prove his case to the satisfaction of the jury; the presumption of law is against him, till the presumption is repelled by contrary evidence.

This rule is sustained by all the most approved of the English elementary writers on criminal law, as well as by many adjudged cases. See 4 Black. Crim. 201; 1 East. PI, Or. 224, 340; 1 Russell on Crimes (1st Ed.) 614, 616; Bac. Abr. Tit. Murder 0.2; 2 Starkie on Ev. 948; Archb. Cr. PL (1st Ed.) 212, 213; 2 Chit. Or. Law 4 Am. Ed. 727; Ros. Cr. Ed. 2d Ed. 20, 653. In Regina v. Kirkham, 8 Car. & P. 115, it was held, that in order to reduce killing of a person to the crime of manslaughter, there must not only be sufficient provocation, but the jury must be satisfied, that the fatal blow was given in consequence of that provocation. Rex v. Greenacre, Id. 35.

In Commonwealth v. York, 9 Met. 93, it was held, that "when on a trial of an indictment for murder the killing is proved to have been committed by the defendant, and nothing further is shown the presumption of law is, that it was malicious and an act of murder; and proof of matters of excuse or extenuation lies on the defendant, wdiich may appear either from evidence adduced by the prosecution, or from evidence offered by the defendant. But where there is any evidence tending to show excuse or extenuation, it is for the jury to draw the proper inferences of fact from the whole evidence, and to decide the fact on which the excuse or extenuation depends according to the preponderance ot evidence." The opinion in this case Avas delivered by Shaw, chief justice, Wilde, J., dissented. See also Com. v. Webster, 5 Cush. 316; Com. v. Hardiman, 9 Gray 136; Com. v. Heath, 11 Gray 303; State v. Knight, 43 Me. 137; People v. Schryver, 42 N Y. 1; Stokes v. People, 53 N. Y. 164.

In the case of Silvus v. State, 22 Ohio St. 90, it was held, upon a review of the authorities, that on the trial of an ind'ctment for murder, the burden of proving that the homicide was excusable on the ground of...