State Of West Va. v. Shelton

• Decision Date: 19 February 1935
• Docket Number: (No. 8063)
• Citation: 116 W.Va. 75
• Court: West Virginia Supreme Court
• Parties: State of West Virginia v. Winston L. Shelton

116 W.Va. 75

State of West Virginia

v.Winston L. Shelton

(No. 8063)

Supreme Court of Appeals of West Virginia.

Submitted January 29, 1935.

Decided February 19, 1935.

1. Criminal Law

In the trial of a criminal case the trial court, acting under Code, 62-3-7, may, for manifest necessity, discharge the jury and order a new trial. Such action will not afford basis for a plea of former jeopardy.

2. Homicide

Where there was intentional use of a deadly weapon in producing the death of another, the jury may infer malice from the act.

3. Criminal Law

Within reasonable and proper limits the order of the introduction of testimony at a trial rests with the party offering it.

4. Criminal Law

Remarks of trial courts with reference to matters of fact which might in any degree influence the verdict are improper.

5. Homicide

Dying declarations are admissible to prove the fact of the killing, who was the slayer, and such other facts and circumstances as immediately attended the homicide and form part of the res gestae. They may extend to the entire circumstances of the fatal occurrence, but should not include narratives of matters not immediately connected with it.

6. Criminal Law

An instruction should not be given which is based wholly or in material part on a hypothesis not supported by appreciable evidence.

Error to Circuit Court, Clay County.

Winston L. Shelton was convicted of second degree murder, and he brings error.

Judgment reversed; new trial awarded.

E. G. Pierson and W. E. R. Byrne, for plaintiff in error. Homer A. Holt, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for the State.

Maxwell, Judge:

This is a homicide case from Clay County. The result of the trial was the sentence of the defendant, Winston L. Shelton, to penitentiary confinement for fifteen years on a verdict convicting him of second degree murder in the killing of Clemon Rogers.

The tragedy took place on Main Street in the town of Clay about 11 P.M., January 1, 1934. The defendant admits that he fired from a shotgun the charge which fatally wounded the deceased.

The defendant, age 57, a man of family and property, for several years has had imperfect use of his legs because of serious loss of their normal strength. Habitually he walks with a cane, sometimes with crutches. The deceased was a much younger man, weighed 170 pounds or more, and was boastful of his physical prowess. Two witnesses from the vicinity of his home near Paxton in Clay County testified that his general reputation in that community as a peaceable citizen was not good. One of them referred to the deceased's reputation for being "troublesome" and "fussy".

On the night of the fatal event deceased was drunk and quarrelsome. He was a constable and earlier in the evening was armed with two revolvers, but at the time he was shot he had none on his person.

Of the details of the voluminous record only the salient features will here be recited. The narrated events all occurred on the south side of Main Street. At the eastern or upper end of the range of activities is the Luke Rhodes restaurant; about 350 feet away, at the western or lower end, is the residence and restaurant of the defendant. Westward from the Rhodes restaurant there are first a vacant lot, then, in order, the law office of B. C. Eakle, the Clay County Bank building, an intersecting street, a building with two business rooms occupied by the post office and the Mullens confectionery store, the Henry Clay Hotel, a vacant lot, a garage and service station of the defendant, and his restaurant and residence.

A while before the shooting there was a disturbance in the Rhodes restaurant. Several persons were present. There was much loud and rough talk but no violence. Conspicuous among the contenders were the deceased and Bill Shelton, age 21, likewise intoxicated, son of the defendant. Bill and the deceased had had trouble about two weeks previously. Some say that Rogers (the deceased), coming into the restaurant after the row had started, undertook in his capacity as constable to quell the disturbance; others that he Hashed a revolver with loud threats as an active participant. Either in the restaurant or just after leaving it a revolver which Rogers was carrying in his holster was turned over to Buren Stephenson, deputy sheriff, at the latter's request. Whether Rogers had another revolver about his person after that is not clear, but probably he did not.

Mrs. Myrtle Shelton, wife of defendant and mother of Bill, being informed at her home that there was disorder at the Rhodes restaurant and that Bill was present, went there immediately, with Rena Rogers, a house guest, age nineteen, sweetheart of Bill. Finding Bill they started back with him toward the Shelton home accompanied by Buren Stephenson and Burl Freeman. Rogers followed, cursing, reviling and threatening Bill. Mrs. Shelton ran ahead, aroused the de fendant from his sleep and informed him of the trouble. The defendant hastily dressed and went out on the sidewalk in front of his garage.

Mrs. Shelton hurried back to the brawl, and interposed herself between Bill and Rogers, the latter of whom had cast his hat, coat and top shirt stripped for a fight. While the commotion still raged but without any violent acts unless it was the throwing of one or two rocks by Rogers, Bill was induced to go into the Shelton home where he remained. About that time Robert Shelton, seventeen-year-old son of the defendant, came upon the scene. (Robert was jointly indicted with his father for murder of Rogers but has not been put on trial.) Sharp words passed between him and the deceased. The defendant and Robert testify that the latter picked up two stones and by threats compelled the deceased to throw down a stone with which he was threatening to strike the defendant; that thereupon the deceased threw his right hand to his hip as though to draw a revolver, and, with vile language, threatened to kill Robert, who said to Rogers that if that was the game he was proposing to play he (Robert) would get a gun. He immediately went to the nearby home of B. L. Stephenson and obtained the defendant's shotgun which had been borrowed by Stephenson. While Robert was after the gun the deceased went up the street to the Rhodes restaurant; defendant walked a short distance in the same direction.

Robert promptly returned to his father's home with the gun where he loaded it. One shell was discharged in the street in front of the house. He says this was accidental. From this point there is serious divergence in the testimony with respect to the events leading up to and including the shooting.

The testimony of witnesses introduced by the state is to this effect: That Robert gave the defendant the gun near the hotel and said to him, "You take this gun, you are older and need it"; that after the deceased had returned to the Rhodes restaurant the defendant stopped in front of the post office and in conversation with the postmaster, J. F. Wilson, told him that if he (defendant) had had his gun the matter would have been settled; that the deceased came back down the street to the corner entrance of the bank building and stood behind a column, and the defendant continuing to stand in front of the post office called deceased a coward and told him to come on; that deceased replied that he was no coward and was not afraid of defendant with all of his guns; that deceased then crossed the intervening side street to the sidewalk corner in front of the post office; that deceased proposed to make friends with defendant and to shake hands with him; that defendant told deceased that he was no friend of defendant and for deceased not to come any nearer; that deceased continued to advance and defendant shot him in the upper third of the left thigh; that after the shot was fired defendant was heard to say, in response to inquiries, "I shot him in the guts, * * * I killed the damned son of a bitch," and that he did not care.

For the defense it is testified that the defendant, while talking with Wilson, heard the report from the gun when it was first discharged, hurried down the street toward his home, met Robert, took the gun away from him to prevent the possibility of the latter's doing something violent, and told Robert to go into the house, but instead Robert went up the street; that the defendant followed, fearing that the deceased might hurt the boy; that when defendant had gone as far as the post office the deceased came from the Rhodes restaurant uttering vile epithets and dire threats against the defendant; that when deceased then started across the side street from the bank and proposed to shake hands, defendant told him that he would shake hands with him when he was sober, but not at the instant; that he (defendant) would not that night take the risk of permitting deceased to come close enough to shake hands; that as deceased advanced, defendant, before he fired, backed away and told him twice not to come any nearer. (That the defendant just before firing moved backward and repeated the command to the deceased not to advance, appears also from the state's evidence.) Defendant testified that he feared violence from the deceased and purposed to shoot him about the knees to stop him.

When the deceased was shot he was still without coat, top shirt or hat.

On the fourth day after receiving the wound, the deceased died thereof in a Charleston hospital.

Points of error urged: (1) sustaining demurrer to plea of former jeopardy; (2) overruling motion to set aside the verdict on the ground that it was contrary to the law and the evidence; (3) undue interference with the order of introduction of defendant's evidence, and improper remarks from the bench; (4) admission in evidence of purported dying declarations of deceased; (5) prejudicial rulings on instructions.

Plea of former jeopardy. In the course of the taking of testimony in the initial trial, report having been made to the court that there had been a...