State Of West Virginia v. Douglass

• Court: Supreme Court of West Virginia
• Citation: 28 W.Va. 297
• Parties: State of West Virginia r. Douglass.
• Decision Date: 07 July 1886

28 W.Va. 297

State of West Virginia
v.
Douglass.

Supreme Court of Appeals of West Virginia.

Submitted June 25, 1886.
Decided July 7, 1886.

[28 W.Va. 297]

1. To convict one of murder it is not necessary, that malice should exist in the heart of the accuse.1 agai ist the deceased. If the accused was guilty of striking with a deadly weapon another add of killing him, the intent and the malice may both be inferred from such act; and such malice may not be directed against any particular person, but is such as shows a "heart regardless of social duty and fatally bent on mischief," (p. 299.)

2. The second point in the syllabus in Robinson's Case, 20 W. Va. 713, approved, (p. 30l.)

The third point in Robinson's Case, supra, approved, (p. 301.)

4. When there is an assumption of a fact in an instruction given to a jury, and the evidence, which is certified, is as to the correctness of the assumption so full and uncontradicted, as to necessitate the inference, that it was undisputed or tacitly admitted, the judgment will not be reversed, because such fact was so assumed to be true. Where an instruction in a murder case assumed as true, that the "blow" struck by the prisoner killed the deceased, and the evidence was certified, which showed, that the fact was not controverted, but the proof of such fact was full, and there was not a particle of evidence to the contrary, the judgment will

[28 W.Va. 298]

not be reversed and a new trial granted, because such fact was assumed to be true, (p 301.)

5. An instruction which tells the jury, "if they believe from all the

facts and circumstances of the case that the prisoner wilfully, maliciously, deliberately and premeditatedly struck the blow which killed the deceased, they must rind him guilty of murder in the first degree," separating as it does, the "blow" from the character of the instrument with which it was inflicted, and the intent with which it was given, is erroneous, and for such error the judgment should be reversed, and a new trial granted, unless it appeared from the uncontradicted evidence certified that the instrument, with which the blow was struck, was of such a character, that the court could know that it was a deadly weapon, (p. 302.)

6. Where an erroneous instruction has been given to the jury, the presumptio i is, that the exceptor has been prejudiced thereby, and the judgment will be reversed for such cause, unless it clearly appears from the record, that the exceptor could not have been so prejudiced, (p 303.)

C. Hall for plaintiff in error.

Alfred Caldwell, Attorney General, for the State cited the following authorities. 1 Hawkins (6th Eng. Ed.) 118; Id. 124-126; 1 East Crown Law 214; Id. 219; Id. 232, 233; 4 Blacks. 195; Id. 199, 209 (s. p.); 3 Chit. Cr. L. 727; Foster Cro. L. 256; 3 Gratt. 604 el seq.; Id. 431; 5 Bac. Abr. 763; Whar. Cr. L. 368 el seq.; Whar. Am. Law of Horn. 371, 372, 385 et seq.; 3 Gratt. 504; 20 W. Va. 713; 9 Humph. 664; 33 Gratt. 807; 11 Leigh 681.

Johnson, President:

On January 5, 1886, Lewis Douglass was in the circuit court of Kanawha county indicted for the murder of William Teal. On the same day the prisoner appeared and moved to quash the indictment, which motion was overruled, and he pleaded not guilty. On March 17, 1886, the trial on the issue was commenced, and on the 19th of the same month the jury returned a verdict of not guilty of murder in the first degree but guilty of murder in the second degree. The prisoner moved the court to set aside the verdict and grant him a new trial, which motion the court overruled and sentenced the prisoner to the penitentiary of the State for the term of eighteen years. During the trial the prisoner saved

[28 W.Va. 299]

three bills of exceptions; the first to the refusal of the court to give two several instructions asked by the prisoner; the second to the refusal ot the court to set aside the verdict and grant him a new trial, and. also to the refusal of the court to arrest judgment: the third to the giving of two several instructions to the jury at the instance of the State. To the judgment the prisoner obtained a writ of error.

The motion to quash was properly overruled, as the indictment is in the usual and proper form. The first instruction asked for by the prisoner and refused is as follows: "If the jury believe from the wholeevidence in this cause, that the prisoner, Lewis Douglass,.and the deceased, William Teal, were on good terms and on friendly relations at the time the killing was alleged to have been done, and that there was no malice existing between the prisoner, Lewis Douglass, and William Teal, the deceased, at the time of the alleged killing, then the jury can. not find the prisoner, Lewis Douglass, guilty of murder cither in the first or second degree," If this instruction had property told the jury, that it was necessary, that it should appear to them, that the prisoner had done the act charged with malice, before they could convict him ot murder cither in the first or second degree, it would have been correct and should have been given. But did it so instruct the jury?

Where a homicide is proved, the presumption is that it is murder in the second degree. It 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 manslaughter, the burden of proof rests upon him. (Cai...