State Or West Va. v. Cassim

• Decision Date: 05 April 1932
• Docket Number: (No. 7184)
• Court: West Virginia Supreme Court
• Parties: State or West Virginia v. Carter Cassim

112 W.Va. 92

State or West Virginia

v.Carter Cassim

(No. 7184)

Supreme Court of Appeals of West Virginia.

Submitted March 23, 1932.

Decided April 5, 1932.

1. Homicide

Threatening statements, made by deceased's associates while in his company a few hours prior to his being fatally shot in a confectionery and pool room by its proprietor, the defendant, although not naming defendant and not communicated to him, but, under all the circumstances, seemingly directed toward him, are admissible in evidence along with threats made by deceased, shortly prior to the shooting, apparently with reference to defendant, to show the state of mind of deceased and his associates when they went to defendant's place of business a few moments before the shooting, and to characterize the deceased's conduct therein.

2. Homicide

In a trial upon an indictment for murder, in the absence of evidence tending to show malice on behalf of the accused, it is error to instruct the jury that it may find defendant guilty of murder in the second degree.

3. Homicide

Where a jury in a trial upon an indictment for murder, without sufficient evidence of malice, returns a verdict of murder in the second degree, the verdict will, on writ of error, be set aside and a new trial awarded.

Error to Circuit Court, Kanawha County. Carter Cassim was convicted of murder in the second degree, and he brings error.

Reversed; verdict set aside; new trial awarded. A. M. Belcher, for plaintiff in error.

Howard B. Lee, Attorney General, and R. A. Blessing, Assistant Attorney General, for the State.

Maxwell, Judge:

Convicted of murder in the second degree and sentenced to serve five years in the state penitentiary, defendant prosecutes error.

Between seven and eight o'clock Sunday evening, January 29, 1928, defendant shot Ernest Smith.in the former's place of business in Kanawha City. Smith died in a hospital the following morning.

Deceased and three or four companions, all under the influence of liquor, went to defendant's place of business, a small confectionery and pool room, about seven o'clock in the evening. Therein deceased and one of his confederates engaged in an altercation and fight with one George Love, deceased being the aggressor. Deceased and Love were strangers. The evidence is somewhat conflicting as to what actually took place thereafter. It appears, however, that Love appealed for aid. Several witnesses testified that defendant came to Love's assistance and demanded that the parties go outside to do their fighting; that he took deceased by the shoulder, not violently, and attempted to lift him off Love; that deceased struck defendant on the shoulder and knocked him down, (there being a conflict here as to whether deceased had a pool ball in his hand); that as defendant attempted to arise, deceased struck him in the face; that as defendant was again endeavoring to arise, deceased "drew back" to strike him, and defendant, while in a half raised position, drew his pistol and fired two shots in rapid succession, the first into the floor and the second into the body of deceased. The ball took effect in deceased's right side, pene- trating the liver. State's witnesses, Love and Wilson, stated that deceased and defendant had had no trouble, and that defendant, standing ten or twelve feet from deceased, and while deceased was looking in the opposite direction, drew his pistol and shot him. Wilson admits, however, that he heard Love appeal for aid, saying "he had enough"; that he heard defendant tell deceased to stop fighting and "to leave there"; that defendant asked him, Wilson, to take deceased out; and that it was only "a minute or so, a few seconds" after they got them deceased and Love separated until the shots were fired. He also testified that he was holding deceased away from Love at the time the shots were fired. He is not corroborated in this however. Love stated that he did not know who took deceased off him. There is evidence that there was a "knot" or lump on defendant's face, as from a blow, immediately following the fight.

The record discloses that deceased and defendant were strangers. Defendant stated that he saw him for the first time about four o'clock in the afternoon when he and his companions first came to the confectionery.

It is evident from the testimony of practically all the witnesses, both for the state and the defense, that defendant disapproved of the conduct in his confectionery of deceased and others. He insisted that they go on the outside to do their fighting. Several prominent citizens of Kanawha County testified to defendant's good reputation and standing in his community. The fact that earlier in the afternoon defendant had called the state police because of some drinking about his place of business of which he disapproved, tends to show that with the aid of the conservators of the peace he desired to preserve order about his premises. Defendant is an Assyrian and had been engaged in the mercantile business in the Kanawha Valley for more than twenty years.

There is evidence of threats made in the presence of deceased by his confederates in the course of the afternoon and again just before they went to defendant's place of business. They were not, however, directed at defendant by name. Some alleged statements of the deceased were ad- mitted in evidence, but those of his associates were not admitted. Witness Warren was permitted to testify that, while talking with deceased and his associates about three or four hundred yards from defendant's place of business, and about forty-five minutes prior to the shooting, deceased said, "I am going down here and kill me a damn Wop." That when they left him they went in the direction of defendant's store. A witness by the name of Dunlap was permitted to state that in the afternoon, a while before the shooting, deceased said he "was going up the road either to kill that hunk or run him out of town". The court refused to permit witness Legg to testify that one of deceased's confederates, while just outside of defendant's confectionery a short time before the shooting, said to witness, "Let's go in and wreck this joint." The court likewise sustained an objection to the testimony of William Durbin that, when at the C. & 0. depot in Charleston a short while before the shooting, "they" (meaning deceased and his companions) said they "were going up to Kanwha City and have a fight." Testimony of witness Legg that deceased stated in defendant's confectionery shortly before the shooting that "we come up here to clean this place up" was not admitted by the court.

While it is true that, isolated and alone, these threatening statements would have little probative value inasmuch as they were not communicated to the defendant, yet, when considered with similar statements of deceased, properly admitted in evidence (State v. Laura, 93 W. Va. 250, 116 S. E. 251), they would, we believe, tend to show the mental attitude...