State Of West Va. v. Whitt

Citation129 W.Va. 187
Decision Date01 October 1946
Docket NumberNo. 9822,9822
PartiesState of West Virginia v. Everette Whitt
CourtSupreme Court of West Virginia
1. Homicide

In the trial of an indictment for murder it is not error to instruct the jury that if the jury believes from the evidence, beyond a reasonable doubt, that the accused, armed with a deadly weapon, without any or upon very slight provocation, gave to the victim a mortal wound then he is prima facie guilty of wilful, deliberate and premeditated killing and that unless extenuating circumstances are shown by the testimony of either the defentant or the State, the accused is guilty of murder in the first degree, when the evidence of the State shows that the accused immediately before the homicide occurred in anticipation of an altercation with the deceased walked quickly an appreciable distance to his dwelling, there procured a loaded shotgun, returned to the scene of the shooting and there intentionally shot deceased in the head.

2. Criminal Law

It is not an abuse of a trial court's discretion in a trial for murder to admit in evidence photographs of the unmoved body of the victim of a gunshot taken at the scene of the killing by a competent photographer, the accuracy and correctness of the photographs not being questioned.

Error to Circuit Court, Logan County.

Everette Whitt was convicted of murder in the first degree, and he brings error.

Affirmed.

Salisbury, Hackney & Lopinsky, R. H. Casto and Lon G. Marks, for plaintiff in error.

Ira J. Partlow, Attorney General, Ralph M. Hiner, Assistant Attorney General, and Eston B. Stephenson, Special Assistant Attorney General, for defendant in error.

Kenna, President:

In the Circuit Court of Logan County Everette Whitt was convicted of murder in the first degree for the killing of Mae Elkins by the discharge of a shotgun on the 21st day of August, 1945. The verdict of the jury further found that he be punished by confinement in the penitentiary with the result that the sentence was life imprisonment. This writ of error was granted upon a petition assigning twenty-seven alleged errors. Of the six assignments briefed and submitted, one is based upon the giving of State's Instruction No. 1A, one upon the admission of photographs of the victims body at the scene of the killing contended to have inflamed the minds of the jury to the prejudice of the accused, one upon four alleged erroneous rulings admitting testimony on behalf of the State, and the remaining three upon the insufficiency of the State's evidence to sustain a verdict of murder in the first degree. These assignments will be dealt with in the inverse order of their statement, beginning with the three assignments having to do with the entire evidence.

The record shows that the Whitt and the Elkins families lived on adjoining land on the right hand side of Rocky Creek, a short distance from Chapmanville. An unpaved public road went up Rocky Creek on its right bank to a point above their properties, the Elkins land not extending beyond the creek but the Whitt farm lying on both sides. The road crossed the creek on what seems to have been a log bridge fifty or sixty feet above a roadway from the public road into the Whitt property, which roadway, where it connected with the public road, was up the creek approximately one hundred, twenty-five yards above the Elkins house. The Elkins home is within a few feet of the public road and of the property line between the two places. It is on a bend so that the Whitt house could be seen by a person standing either behind or in front of that of the Elkins. The Whitt home is back from the road about sixty feet.

A few clays before the shooting occurred the bridge had been repaired by WPA labor and new timbers had been put in place of the old that had been left by the workmen below the bridge in the bed of the creek. Ben Elkins, husband of Mae Elkins, and two of the Elkins boys had taken part in this work and had intended to take the discarded timbers to their home for what they call "wash wood", evidently wood used in heating water for the purpose of washing clothes out of doors. Billy Elkins, aged twelve, had gone up to the bridge the morning before the shooting occurred with a mule for the purpose of "snaking" the discarded timbers to the Elkins home to be so used and had then been told by Everette Whitt that the wood belonged to him and to "get down the road", which he did without attempting to take the wood. That evening the Elkins discussed the occurrence at the supper table and the father told his boys to leave the wood alone because he did not want to have trouble concerning it. On the following morning after the father had gone to work, Ben Elkins, aged seventeen and known as "Junior", together with Billy, went up the creek with a mule for the purpose of dragging the logs to the Elkins home. They were seen by Everette Whitt in the bed of the creek before they had attached the mule's harness to the timber. Whitt came to the creek with a cane that he was carrying, and. after having taken the lines of the mule with which Billy was guiding it away from him, struck the mule so that it went down the creek toward the Elkins home with Billy after it. Whitt also struck Junior on the left arm or elbow with his cane so that Junior ran up the creek for a short distance. Whitt denies using his cane except to ward off a blow from Junior. As Billy was going down the creek toward the Elkins home he shouted that Whitt had hit Junior on the arm. This was heard by Margaret Elkins who promptly told her mother, who was in the kitchen preparing bread. Mae Elkins, the mother, at once left her house and started up the creek at a fast walk, passing both Junior and Billy, Junior having come down the road from above the bridge.

There is considerable difference in detail between the evidence of the State and that of the defendant, much of which is not consequential and cannot be discussed. However, concerning the sequence of happenings immediately preceding the shooting there is material conflict, partly expressed by the witnesses in language that is not clear.

The State's proof shows that after having gotten the two Elkins boys and their mule away from the logs and after Billy had shouted that Whitt had hit Junior and Mae Elkins had started up the road toward him, Whitt went quickly through a short cut to his house about forty or fifty feet away, got a single barrel, sixteen gauge shotgun and started down the path in his lot toward the road. He evidently stopped within thirty feet of the road and in the meantime Mrs. Elkins had reached the point on the road approximately that same distance below the Whitt private roadway. She had passed Junior coming down the road from above the bridge, as had Margaret. Junior testified that he was about seventy feet down the road from his mother when she was shot. Margaret Elkins was coming up the road with a twelve gauge, single barrel shotgun that she had gotten in the Elkins house when she saw Whitt leaving his home with a gun. She was followed by Billy. Whitt told Mrs. Elkins that if she knew what was good for her she would get down the road. She replied that she was on a public road where she had a right to be, called him a God damn son of a bitch and told him that he would have to pay for injuring Junior's arm. Whitt then shot her from a distance of between fifty and sixty feet. Margaret was within about ten feet of her mother when the shooting occurred. Junior was uncertain as to when he took the gun from Margaret, but she says that after her mother was shot he strode up the road to where she was, took the gun, closed the breech and fired at Whitt. Whitt, who had then reloaded his single barrel shotgun, fired at Junior, hitting him but not injuring him seriously, although he was hospitalized.

As stated, the testimony on behalf of the accused conflicts with that of the State in a number of respects, the defendant contending that it was his purpose to shoot Junior Elkins, who was armed at the time with a shotgun that he was preparing to discharge at him, the accused, and that he unintentionally struck Mrs. Elkins who at the time was standing quite close to Junior. Whitt also contends that he started to his house to get his shotgun after seeing Margaret Elkins start up the creek with the Elkins shotgun and that before the shooting occurred Mrs. Elkins had cursed him repeatedly and had thrown four or five rocks in an attempt to injure him. The defendant's sixteen year old son, Blake Whitt, testified that he saw the entire occurrence from his bedroom window on the second story of the Whitt home and that Mrs. Elkins, with Margaret Elkins running behind her with the shotgun, was throwing rocks at his father and cursing him before Whitt started to his house to get his shotgun and that before Whitt fired the shot that killed Mrs. Elkins, Junior Elkins had grabbed the shotgun from Margaret and was raising it to his shoulder with the purpose of shooting Everette Whitt while standing within a foot of his mother. Whitt denies taking the reins of the Elkins' mule from Billy and striking the mule with his cane for the purpose of driving it down the road. He says that he only struck Junior with his cane in order to ward off a blow that Junior intended for him. His version is that he did not start to his house until he saw Mae Elkins coming up the road and attempting to hit him with rocks and that when she got within twenty-five feet of him he "retreated" to his own property and at that time he saw Margaret Elkins about one hundred feet above the Elkins house coming up the road with the Elkins' shotgun. Whitt says that with Mrs. Elkins and Junior standing in the road at the mouth of the lane on his property and with Margaret coming rapidly up the road carrying the shotgun "it just come to me that I would go and get my gun", and that after he had gone into his house and gotten his gun, Margaret, Junior and...

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6 cases
  • State v. Bruner, 10947
    • United States
    • West Virginia Supreme Court
    • 7 Octubre 1958
    ...homicide. We think the admission thereof was not prejudicial error. See State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899; State v. Whitt, 129 W.Va. 187, 40 S.E.2d 319; State v. Goins, 120 W.Va. 605, 199 S.E. 873; Newberry v. Commonwealth, 191 Va. 445, 61 S.E.2d Defendant says that the admi......
  • State v. Simmons
    • United States
    • West Virginia Supreme Court
    • 14 Noviembre 1983
    ...testified as to the victim's harassment of the defendant. Therefore its rejection would not be reversible error. State v. Whitt, 129 W.Va. 187, 192, 40 S.E.2d 319, 322 (1946). The defendant also assigns as error that the trial court unreasonably rejected some of the defendant's proposed voi......
  • State v. Johnson
    • United States
    • West Virginia Supreme Court
    • 4 Diciembre 1956
    ...not proper to give such an instruction in the circumstances of every case where malice and premeditation are involved. See State v. Whitt, 129 W.Va. 187, 40 S.E.2d 319; State v. Garner, 97 W.Va. 222, 124 S.E. 681; State v. Coleman, 96 W.Va. 544, 123 S.E. 580; State v. Whitt, 96 W.Va. 268, 1......
  • State v. Reed
    • United States
    • West Virginia Supreme Court
    • 17 Marzo 1981
    ...when objection to the admission rests solely upon undue prejudice, State v. Sette, W.Va., 242 S.E.2d 464 (1978); State v. Whitt, 129 W.Va. 187, 40 S.E.2d 319 (1946), we would not find this error alone to be reversible. 2 Were we considering admission of a "mug shot" for example, which had l......
  • Request a trial to view additional results

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