State of West Virginia v. Cain.

Citation20 W.Va. 679
CourtSupreme Court of West Virginia
Decision Date19 August 1882
PartiesState of West Virginia v. Cain.

It is not error for the court in the presence of the jury to hear evidence to lay the foundation for admitting the dying declaration of the deceased, especially where the court admonishes the jury, that the evidence is not for them but for the court alone, (p. 684.)

It is not the duty of the prosecuting attorney on a criminal trial to examine all the witnesses, who were present at the commission of an alleged offense, nor all the witnesses, who were sent to the grand jury, when the indictment was found, and where names are at the foot or on the back of the indictment, and who may have been examined at the coroner's inquest, and who have been recognized to appear at the trial by the State. It is the province of the prosecuting officer, and not of the court, to determine, who shall be examined as witnesses on behalf of the State, (p. 685.)

3. Before the declaration of a co-conspirator made in the absence of the prisoner can be given in evidence against the accused; there must be proof sufficient in the opinion of the court to es-tablish prima facie the fact of conspiracy between the parties; the question of theexistence of such conspiracy being ultimate-ly for the jury. (p. G94.)

4. Although such evidence of the declaration of an alleged co-con-spirator be admitted without such foundation being laid, yet the judgment will not be reversed for this reason, if the facts proved, or evidence certified show that prima facie the fact of

conspiracy had been established, (p. 694.)

5. In considering the admissibility of the declarations of an alleged co-conspirator made in the absence of the prisoner such declarations so made will not be regarded as evidence of the fact of conspiracy, unless they so accompany the execution of the common criminal intent, as to become a part of the res gestce, or in themselves tend to further the execution of the common criminal intent, (p. 694.)

6. Where there is a quarrel between two persons, and both are in fault, and a combat as the result of such quarrel takes place, and death ensues, in order to reduce the offense to killing in self defense, two things must appear from the evidence and the circumstances of the case, first that before the mortal blow was given, the prisoner declined further combat and retreated, as far as he could with safety; and secondly, that he necessarily killed the deceased in order to preserve his own life, or to protect himself from great bodily harm. (p. 700.)

7. When one without fault himself is attacked by another in such a manner or under such circumstances as to furnish reasonable grounds for apprehending a design to take away his life, or to do him some great bodily harm, and there is reasonable grounds for believing the danger imminent, that such design will be accomplished, and the person assaulted has reasonable ground to believe, and does believe, such danger is imminent, he may act upon such appearances and without retreating, kill his assailant, if he has reasonable grounds to believe, and does believe, that such killing is necessary in order to avoid the apparent danger; and the killing under such circumstances is excusable, although it may afterwards turn out, that the appearances were false, and that there was in fact neither design to do him some serious injury nor danger, that it would be done. But of all this the jury must judge from all the evidence and circumstances of the case. (p. 703.)

8. In such a case as to the imminency of the danger, which threatened the prisoner, and the necessity of the killing in the first instance the prisoner is the judge; but he acts at his peril, as the jury must pass upon his action in the premises, viewing said actions from the prisoner's stand-point at the time of the killing; and if the jury believe from all the facts and circumstances in the case, that the prisoner had reasonable grounds to believe, and did believe, the danger imminent, and that the killing was necessary to preserve his own life or to protect him from great bodily harm, he is excusable for using a deadly weapon in his defense, otherwise he is not. (p. 703.)

9. Although in one part of the instruction the law is propounded correctly, yet if in another part of the instruction the law on the same subject is incorrectly stated, the instruction is calculated to mislead the jury, as they are left to conjecture, which part of the instruction states the law of the case, and for such an erroneous instruction the judgment will be reversed, (p.

10. Where a homicide is proved, the presumption is, that it is murder in the second degree. If the State would elevate it to murder in the first degree, she must establish the characteristics of that crime; and if the prisoner would reduce it to man-slaughter, the burden of proof rests upon him. (p. 709.)

11. A man is presumed to intend that which he does, or which is the immediate or necessary consequence of his act; and if the prisoner with a deadly weapon in his possession without any or upon very slight provocation gives to another a mortal wound, the prisoner is prima facie guilty of willful deliberate and premeditated killing, and the necessity rests upon him of showing extenuating circumstances, and unless he proves such extenuating circumstances, or the circumstances appear from the case made by the State, he is guilty of murder in the first degree, (p. 709./

12. The bare fear, that a man intends to commit murder or other attrocious felony, however well grounded, unaccompanied by any overt act, indicative of such intention, will not warrant killing the party by way of prevention. To warrant said killing, there must be some overt act indicative of imminent danger at the time; and the acts of the assailant must be such, as under all the evidence and circumstances of the case convince the jury, that the prisoner had reasonable grounds to believe, and did believe, the danger imminent, and that the killing was necessary to preserve his own life or to protect him from great bodily harm. (p. 710.)

13. An instruction, which is confused in its language and makes it doubtful what is intended thereby, and is calculated to mislead the jury, should not be given, (p.).

14. The word, "papers," as read in section 12 of chap. 131 of the Code, does not include depositions; therefore the court did not err in refusing to permit the jury to take to their room a deposition, taken before the coroner at the inquest, which was read without objection, (p 707.)

Writ of error to a judgment of the circuit court of the county of Jackson rendered on the 24th day of March, 1882, in a trial on an indictment for murder in said court then pending, wherein the State was plaintiff and John W. Cain was defendant, allowed upon the petition of said Cain.

Hon. Robert F. Fleming,.judge of the sixth judicial circuit, pronounced the judgment complained of.

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

Virgil S. Armstrong, for plaintiff in error, cited the following authorities: 2 Gratt. 611; Whar. Crim. Ev. (8th ed.) § 448; Whar. Crim. Prac. (8th ed.) § 565; Whar. Crim. Law (5th ed.) § 702; 1 East F. C. 96; Whar. on Horn. (8th ed.) § 493; Id. § 520; Code ch. 131 § 12; Whar. Crim. PL and Prac. (8th ed.) § 828; Code ch. 144 § 5.

(1 I. Brown Sr R. S. Brown for plaintiff in error cited 33 Gratt. 834; 8 Leigh 726; 6 Gratt. 723; 1 Gra. & Wat. New Trials 505; Whar. PI. & Pr. § 790 et seq.; 1 Greenl. Ev. (13th ed.) § 111; 1 Chitt. Crim. Law s. p. 566; Ros. Crim. Ev. 128; 1 Greenl. Ev. § 448 note 3; 1 Whar. Crim. Law (8th ed.) §§ 488, 492; 8 W. Va. 741; 3 Gra. & Wat. New Trials 773, 744, et seq.; Whar. Crim. Ev. (8th ed.) §§ 721, 722; Horr & Thom. Self Defense, 909, 910; 5 la. 433; 42 N Y. 1; Walk. Am. Law 445; Ilorr & Thorn. Self Defense, 1, 2, 3; 1 West. L. Jour. 23; 1 Whar. Crim. Law (8th ed.) § 486, A; 3 Greenl. Ev. §§ 122 and note 8, 124.

J. I. Menager for plaintiff in error cited the following authorities: 3 Leigh 186; 6 Gratt. 611; 14 Graft. 613; 26 Graft. 96; 2 Whar. Crim. Ev. (8th ed.) 299; 1 Greenl. Ev. 160; Whar. Crim. Ev. 448; Whar. Crim. Pr. & PI. 565; 8 C. & P. 559; 9 C. & P. 22; 50 Yt, 338; 75 N C. 109; 25 Mich. 405; 40 Mich. 716; 2 Cox C. C. 191; 3 Cox C. C. 82; 18 Wall. 516; 7 Blackf. 427; 26 Me. 312; 45 Vt. 308; 1 Gray 61; 5 Cash. 316; 9 Gray 136; 7 Gratt. 641; 21 Gratt. 895; 31 Gratt. 484; Id, 849; 1 Hawks 442; Whar. Crim. Ev. 698; 1 Greenl. Ill; 2 Whar. Crim. Law 1406; 14 Ohio St. 288; 1 East S. C. 96; 8 W. Va. 773; 1 Bish. Crim. Law §§ 865, 866, 867; 59 Ind. 80; 14 Gratt. 596; Id. 613; 12 Pick. 496; 5 How. (Miss.) 187:; Com. v. MeCall, 1 Va, Cas.; 10 Yerg. 241.

Charles E. Hogg for plaintiff in error cited tlie following authorities: Harr. Hinst. &c, § 3; 7 Barb. 585; 8 C. & P. 22; 8 C. & P. 568; Whar. Crim. Ev. 698; 4 Graft. 547; 9 Am. Dec. 657; 1 Greenl. Ev. § 3; 57 Ind. 40; 2 N Y. 193; 46 N Y. 625; 25 Gratt, 887; Whar. Crim. Law (8th ed.) § 489; 12 Pick. 406; Warden (Ohio) 54; Gra. & Wat. New Trials, 309, 325.

Attorney-General Watts for the State cited the following authorities: 2 Gratt. 611; 2 Va, Cas. 120; 1 East C. L. 358; Id. 354; 5 W. Va. 513; Whar. Crim. Ev. (8th ed.) 448; 56 Ind. 26; 37 Mich. 5; Whar. Crim. Pr. & PI. § 565, et seg.; 6 C. & P. 186; Rose. Crim. Ev. (8th ed.) 136; 1 C. & P. 84; 12 Gratt, 717; 1 Whar. Crim. Law § 486, A; 1 Hale 481; 44 Tex. 356; 29 Ohio St. 186; 21 Gratt, 909; 76 Pa. St. 340; Whar. Crim. PI. & Pr. §§ 828, 829; 61 111. 365; 1 Bish. Crim. Pro. § 980; 2 Gratt, 595; 25 Gratt. 893, 900, 902; 5 Leigh 598; 8 Leigh 726; 6 Gratt, 712; 7 Gratt. 618; 17 Gratt, 561; 18 Gratt, 977; 7 Leigh 608; 8 Leigh 745; 8 Graft. 267; Id. 641; 19 Gratt, 485."

Johnson, President, announced the opinion of the Court:

On the 2d day of November, 1881, John W. Cain was in the circuit court of Jackson county indicted for the murder of Henry Brown on the 26th day of ...

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