State Of West Va. v. Pusey, (No. 8432)

• Decision Date: 08 December 1936
• Docket Number: (No. 8432)
• Citation: 118 W.Va. 95
• Court: West Virginia Supreme Court
• Parties: State of West Virginia v. Martha Pusey

118 W.Va. 95

State of West Virginia

v.Martha Pusey

(No. 8432)

Supreme Court of Appeals of West Virginia.

Submitted September 30, 1936.

Decided December 8, 1936.

1. Homicide

Any unlawful and intentional killing, even by the use of a deadly weapon, when the passion of the slayer is suddenly aroused upon some great provocation, is voluntary manslaughter. State v. Michael, 74 W. Va. 613, 82 s. e. 611.

2.Evidence

On a trial for murder, after the introduction by the defendant of evidence tending to establish threats against him by the deceased, the state may, on rebuttal, offer testimony of the good reputation of the deceased as a peaceable and lawabiding person.

3.Witnesses

Where a witness has freely stated in direct examination that he is a prisoner in the county jail, whether it is error for him to be asked on cross-examination as to the reason for his confinement will depend on the facts and circumstances of the case.

4.Criminal Law

Where an instruction informs the jury that if they believe from the evidence that any witness introduced by the state is unfriendly to the defendant, they have the right to take into consideration such unfriendliness in weighing the testimony of the witness; and it is not error for the court to eliminate from the instruction the clause "and it is your duty to view such evidence, if any, with care and caution."

Error to Circuit Court, Raleigh County. Martha Pusey was convicted of voluntary manslaughter, and she brings error.

A ffirmed.

J. Q. Hutchinson and McGinnis, Ashworth & Mann, for plaintiff in error.

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

Maxwell, Judge:

In the criminal court of Raleigh County, Martha Pusey was indicted for the murder of her husband, C. B. Pusey. She was convicted of voluntary manslaughter and sentenced to penitentiary confinement of five years. The circuit court affirmed. The matter comes now for review on writ of error to the said action of the circuit court.

The defendant and the deceased had been married for about seventeen years. For several years last preceding the tragic ending of their marital relations, they had lived together at Glen Morgan in Raleigh County. He was a mechanic, working for the Chesapeake & Ohio Railway Company, at Raleigh, near where they lived. At the time of his death, he was sixty years of age and she was about twenty years younger. They were large people. He was a stockily built man weighing about 225 pounds; her weight is about 200. They owned their home and a contiguous vacant lot, also another residence property adjoining the vacant lot on the other side, the three fronting on a state highway. The second residence was leased to Ralph Starkey and his wife.

Late Sunday afternoon, September 15, 1935, deceased returned home from his work, went to his room on the second floor and changed his clothes. After a short time, he went to the Starkey home where he was in the habit of making frequent calls. Deceased and Mr. and Mrs. Thomas Young ate supper with the Starkeys that evening. The Youngs left soon after the conclusion of the meal. Pusey remained for about three-quarters of an hour after the Youngs had departed. Then he went home. There was at that time no one in the house but Mrs. Pusey. A. H. Clendenin, a veteran railroad man, and Howard Wolfe, a boy of eighteen, roomed and boarded at the Pusey home, but they had eaten their evening meal with Mrs. Pusey and had left the house. In response to a question as to what happened when her husband came in the house, she testified: "He came in and I asked him to eat supper. He said he had done been to supper, said he had eat supper over at Starkeys. I said it looked like he could eat at home instead of running over there eating all the time." She said further that he then violently seized her by the hair and, with an oath, declared he would kill her; that in the ensuing scuffle, she grabbed from the buffet a revolver for the purpose of striking him with it; that he dragged her out of the house, saying that he was going to take her to the Starkey home and compel her to apologize to Mrs. Starkey (presumably for some supposed reflection upon the latter); that he held her by the hair and one wrist and forced her to the steps of the front porch of the Starkey resi- dence; that, at that point, she succeeded in changing the revolver from her left hand to her right and then, in fear that he would take her into the Starkey home and kill her, she shot him.

Four or five bullets were discharged from the revolver into the body of Pusey. The Starkeys, attracted by the shots, ran immediately to the porch, saw the deceased gasp and expire, and the defendant in the act of departing from the Starkey front lawn toward her own home.

The defendant relies on self-defense.

It was the jury's province, under proper instructions from the court, to weigh the claim of self-defense, and, if, in their judgment, that defense should be rejected, then, to determine the degree of defendant's guilt. This, the jury has done. They may very properly have considered that there was small likelihood the deceased would undertake to kill the defendant or inflict serious bodily injury upon her in the Starkey home where he was trying to take her; that the circumstances were not such as to justify the defendant in believing at the time that such was the intent and purpose of the deceased. One may not kill merely because he is being subjected to an unwarranted assault. If attacked, he may kill in selfdefense, provided he has reasonable ground to believe, and does believe, that he is in danger of death or great bodily injury. State V. Cain, 20 W. Va. 679. If the appearances at the time do not warrant such belief, the homicide will not be excusable. It is not consonant with human experience that a person bent on inflicting grievous or fatal injury upon another would force the victim into the presence of witnesses for the consummation of the act. But, of course, the defendant was terribly enraged by the conduct of her husband toward her as he dragged her from her home and sought brutally to force her into the Starkey home. Naturally, she was humiliated and angered. The jury thought she fired the fatal shots in heat of passion. Such is voluntary manslaughter. "Any unlawful and intentional killing, even by the use of a deadly weapon, when the passion of the slayer is suddenly aroused upon some great provocation, is voluntary manslaughter, and not murder." State V. Michael, 74 W. Va. 613, 620, 82 S. E. 611, 613, L. R. A. 1915A, 533. We think the jury correctly appraised the situation. The verdict was not against the weight of the evidence. The result cannot be disturbed on writ of error unless there was prejudicial error in the conduct of the trial.

The defendant urges other points of error, following.

A point is grounded on the action of the trial court in permitting several witnesses introduced by the state to testify, on rebuttal, to the good reputation of the deceased as a peaceable and law-abiding citizen. The defendant insists that because she had not adduced testimony discrediting such reputation of the deceased, it was improper for the state to go into that matter on rebuttal. While it is true the defendant did not by testimony introduced on her behalf directly impugn the general reputation of the deceased as a law-abiding citizen, there was substantial defense testimony tending to establish hostile and threatening disposition of the deceased toward the defendant for a considerable period of time prior to the homicide. Witnesses introduced on behalf of the defendant testified that the deceased was cross with the defendant; that he drank intoxicating liquor; that he would cast aspersions upon her and her people and would make fun of her cooking; that he was grouchy with her never uttered a kind word; that he would not talk with...