State Of West Va. v. Lawson, (No. 9713)

• Decision Date: 13 November 1945
• Docket Number: (No. 9713)
• Citation: 128 W.Va. 136
• Parties: State of West Virginia v. Dewey Swanson Lawson
• Court: West Virginia Supreme Court

128 W.Va. 136

State of West Virginia

v.Dewey Swanson Lawson

(No. 9713)

Supreme Court of Appeals of West Virginia.

Submitted October 2, 1945.

Decided November 13, 1945.

1. Instructions

The giving of an instruction, at the instance of the State, which tells the jury "that involuntary manslaughter is where one person while engaged in an unlawful act, unintentionally causes the death of another person; or when a person engaged in a lawful act negligently causes the death of another person", is error.

2. Homicide

A person may be guilty of involuntary manslaughter when he performs a lawful act in an unlawful manner, resulting in the unintentional death of another.

3. Automobiles

The giving of an instruction, at the instance of the State, which, in effect, tells the jury that a defendant may be found guilty of involuntary manslaughter for a death growing out of an automobile collision on a public highway, upon a showing, beyond all reasonable doubt, that the defendant was driving his automobile on his left side of the highway at the time of the collision, and that such driving was the sole and oroximate cause of the collision, and that the death of another person resulted therefrom, is error.

4. Homicide

To the extent only that they tend to hold that the crime of involuntary manslaughter may be committed in the performance of a lawful act by simple negligence, the cases of State v. Clifford, 59 W. Va. 1, and State v. Whitt, 96 W. Va. 268, are disapproved.

Error to Circuit Court of Fayette County.

Dewey Swanson Lawson was convicted of involuntary manslaughter and he brings error.

Judgment reversed; verdict set aside; new trial awarded

II. E. Dillon, Jr., and Chas. E. Mahan, for plaintiff in error.

Ira J. Partlow, Attorney General, Ralph M. Hiner, Assistant Attorney General, and Frances Haney Atwood, Special Assistant Attorney General, for defendant in error.

Fox, Judge:

The indictment in this case charges that the defendant, Dewey Swanson Lawson, "within one year of the date of the finding of this indictment, in said County of Fayette, unlawfully did kill and slay one Danese Claytor, against the peace and dignity of the State." Trial was had before a jury, resulting in a verdict finding the defendant guilty of involuntary manslaughter. A motion to set aside the verdict was overruled and a sentence of both fine and imprisonment was imposed on defendant by the trial court, to which the defendant prosecutes this writ of error.

We are not asked to appraise the evidence in the case. Counsel for defendant state in their brief filed here that " * * * the evidence was such that any jury could have reasonably returned a verdict of guilty or not guilty upon the evidence before it. The question of whether or not the death of the deceased was caused proximately by an unlawful act of the defendant, could easily have been resolved either way on the somewhat vague and wholly contradictory testimony."

The assignments of error cover: (1) The refusal of the trial court to permit to go to the jury a question addressed on cross-examination to one John Henry Simms, a witness for the State, and his answer thereto, touching his belief as to the effect a conviction of the defendant in the case being tried would have on certain civil actions arising out of the same collision, then pending against the defendant in the same court, in one of which the witness was plaintiff, and in another his daughter was plaintiff, and in one of which trial had been set for a later day in that term; (2) and (3) the giving of instructions Nos. 1 and 6 at the instance of the State and over the objection of the defendant; (4) refusal of said court to give instructions Nos. 6 and 7 offered by the defendant; and (5) the refusal of the said court to set aside the verdict aforesaid and to award the defendant a new trial.

Taking up the first assignment of error, we find that the offense charged against defendant arose out of an automobile collision, and that defendant was operating one automobile and John Henry Simms the other. The wife and child of Simms, along with Danese Claytor and one other person, were in his automobile, and it appears that of these, all who survived the collision, were, at the time of this trial, prosecuting civil actions for damages in the same court against the defendant, Dewey Swanson Lawson, for damages allegedly sustained by them in this collision. Simms testified rather fully as to how the collision occurred. On cross-examination he was asked if he did not have an interest in the case and if he, his wife, and child did not have actions pending against the defendant, to all of which he replied in the affirmative. Evidence that these actions were docketed for trial later in the same term at which the defendant was being tried was likewise offered on cross-examination of Simms, but was not allowed to go to the jury and an exception was taken. Simms was then asked, "James, you believe that if through your testimony and the testimony of your friends this man is convicted of a criminal charge, that that will help your chances in recovering money damages from him, don't you?" Objection to this question having been made, an affirmative answer was given to the court in chambers, but neither the question nor the answer was permitted to go to the jury. The defendant excepted to the action of the court at the time.

That a witness in a case, civil or criminal, may be inquired of touching his feeling for or against a litigant; or that testimony may be introduced showing such feeling, his pecuniary interest in the result of the case, or as to any other fact or circumstance which might affect his credibility as a witness, is not disputed. The rule is well stated in Underhill on Criminal Evidence, 3d Ed. 565: "The bias of the witness and his interest in the event of the prosecution are not collateral, and may always be proved to enable the jury to estimate his credibility. They may be proved by his own testimony upon cross-examination or by independent evidence. Thus, for example, the prosecution may show that its witness has, on his direct examination, unexpectedly proved hostile, and may then show by other witness that the biased witness was at one time ready and willing to testify against the prisoner. * * * Under modern rules the possession of an actual pecuniary interest in the outcome of an action is not a valid objection to the competency of a witness. But it may always be shown, even in a criminal proceeding, as a fact from which the jury may infer that the witness is biased." This statement is well supported by our own decisions, among which are, State v. Conkle, 16 W. Va. 736; State v. Henderson, 29 W. Va. 147, 1 S.E. 225; Schmertz v. Hammond, 47 W. Va. 527, 35 S.E. 945; Ward v. Brown, 53 W. Va. 227, 44 S.E. 488. See Wadley v. Commonwealth, 98 Va. 803, 35 S.E. 452; Underhill on Criminal Evidence, 3d Ed. 565; 70 C. J., Title Witnesses, Sections 1025, 1207, and 1208.

But we think the rule quoted and the cases cited mean that the facts and circumstances may be shown, or testimony elicited on cross-examination to establish facts, from which the attitude of the witness may be reflected, but that it is for the jury to infer therefrom whether there is bias or interest on the part of a witness which may affect his credibility. It seems to us that when all the facts and circumstances surrounding the witness, and his interest in the case, have been developed, his own belief as to the value of his testimony to him in other litigation is unimportant; that is for the jury to determine in giving weight to his testimony. A witness may testify that the outcome of a suit is of no concern to him, but facts and circumstances touching his relationship toward the parties or the subject matter in litigation, being shown, the jury may well infer that he has an interest in the case which may bear on his credibility. The interest of the witness being admitted by him, the trial court did not abuse its discretion in refusing to permit inquiry as to his opinion on the effect a conviction of the defendant might have on his own claim and those of his wife and child, in their several civil actions against defendant which grew out of the same automobile collision in which Danese Claytor lost her life.

The trial court, at the instance of the State and over the objection of the defendant, gave to the jury instructions Nos. 1 and 6, which in their order read as follows:

"STATE'S INSTRUCTION NO. 1

"The court instructs the jury that one of two verdicts may be found by you in this case, if the evidence so warrants: (1) Involuntary manslaughter; (2) Not guilty.

"The court further instructs the jury that involuntary manslaughter is where one person while engaged in an unlawful act, unintentionally causes the death of another person; or when a person engaged in a lawful act negligently causes the death of another person."

"STATE'S INSTRUCTION NO. 6

"The court instructs the jury that if, from all the evidence in this case they believe, beyond a reasonable doubt, that on the 21st day of October, 1944, the defendant immediately before and at the time of the collision resulting in the death of Danese Claytor, was driving his car upon the left-hand side of the highway, and was driving-upon his left-hand side of the highway at the time of colliding with the car aforesaid, and if you further believe, beyond all reasonable doubt that the fact that the defendant was so driving upon his left-hand side of the highway was the sole and proximate cause of the collision, and that said collision resulted in the death of Danese Claytor, then you should, under these circumstances, return a verdict against said defendant of involuntary manslaughter as charged in the indictment in this case."

It will be observed that Instruction No. 1 tells the jury, in effect, that involuntary manslaughter may result from the doing of a lawful act in a negligent manner; and Instruction No. 6 tells the jury, in effect,...