State v. Alie

• Decision Date: 01 October 1918
• Docket Number: 3620.
• Citation: 96 S.E. 1011,82 W.Va. 601
• Parties: STATE v. ALIE.
• Court: West Virginia Supreme Court

96 S.E. 1011

82 W.Va. 601

STATE v. ALIE.

No. 3620.

Supreme Court of Appeals of West Virginia.

October 1, 1918

Submitted September 24, 1918.

Syllabus by the Court.

An affidavit in support of a motion for a continuance based upon the absence of witnesses, which does not state who the witnesses are, what they will testify, nor that there is a likelihood that their evidence can be procured if a continuance is granted, is not sufficient to sustain such motion.

A motion for a continuance, based upon the ground that the defendant desires to secure alienists to examine him as to his sanity, is properly denied, where the affidavit filed in support thereof does not give any reason why such alienists have not been theretofore procured, or show why they cannot be procured between the time of the making of such motion and the day set for trial, and does not show that there is a reasonable probability that such alienists, if procured would testify as desired by the defendant.

The failure of the trial court to instruct the jury without request, and on his own motion, upon any material matter involved, is not ground for reversal.

In a prosecution for homicide, if the name of the deceased party as charged in the indictment, and as proved upon the trial is that by which he is usually and commonly known and identified, it is sufficient, even though it is not his real name.

Where evidence is offered which is competent only for one purpose it is not error for the court in passing upon the admissibility of it to express the opinion in the presence of the jury that it is not competent for another purpose for which it is offered, but that it is competent for the purpose for which he admits it.

In the cross-examination of a witness, counsel should not indulge in critical or satirical remarks as to the conduct of the witness while testifying; but where no objection is taken by the opposite party to such conduct, and the court immediately requires counsel to desist from making such remarks, and he does so, it is not ground for reversal.

Where there is competent evidence tending to support a pertinent theory in the case, it is the duty of the trial court to give an instruction presenting such theory when requested so to do.

Where one charged with homicide testifies that he had been drugged and robbed by the deceased a few days before the alleged homicide, and that he was unconscious of any act that he did from the time he was so drugged and robbed until after the homicide, when he found himself in jail, there is evidence tending to support the defense of insanity at the time of the commission of the homicide, and an instruction presenting the same to the jury should have been given.

Additional Syllabus by Editorial Staff.

Where one, at the time of the commission of a homicide, has not sufficient mental capacity to have a criminal intent and purpose, that is, to know what he is doing and that it is wrong, he is in contemplation of law "insane."

Error to Circuit Court, Hancock County.

Mahamed Alie was convicted of murder, and brings error. Reversed and remanded.

R. M. Brown, of New Cumberland, and Martin Brown, of Moundsville, for plaintiff in error.

E. T. England, Atty. Gen., and Henry A. Nolte, Asst. Atty. Gen., for the State.

RITZ J.

On the 18th day of February, 1918, the defendant entered a coffee house in the town of Weirton, operated by Mehmed Kessimakis, drew a pistol from his pocket, and discharged three shots therefrom into the body of Moustapha Gumbo, from which the said Moustapha Gumbo died an hour and a half later. After shooting Gumbo, the accused immediately left the room by the door at which he had entered, and, pursued by a considerable crowd, ran in the direction of the Ohio river about a half mile away. While being pursued, he discharged his pistol once or twice in the direction of the pursuing crowd. When he reached the river bank, he was called upon by a police officer to throw down his weapon and surrender. He immediately complied with this request and called upon the officer to protect him. He was indicted on the 11th of March following the homicide and tried on the 21st of March, found guilty of murder in the first degree, and sentenced to be hanged. The accused does not deny the killing as above detailed, nor does he admit it. He states that on the 15th day of February, three days before the killing, the deceased came to the place where he was staying, and asked him to go to Steubenville, Ohio, for the purpose of having a good time. It is shown that he demurred to this upon the ground that it would cost too much, whereupon the deceased said that he would pay all the expenses, and he thereupon went with Gumbo to Steubenville. He says that, after they got to Steubenville, Gumbo took him to a room in a hotel which he informed accused was his place, and there gave him a drink of whisky, or what he supposed to be whisky; that in a very few minutes thereafter he lost consciousness, and only came to himself the next morning long enough to know that he had been robbed of $1,015 which he had on his person, whereupon his mind again became a blank, and he does not know what happened from that time until he discovered himself in jail after the killing, but how long after does not appear. He says that he has no recollection whatever of having shot Gumbo; that he has no recollection of anything that transpired from the time that he discovered the loss of his money, the morning after he was drugged, until he recovered in the jail, after having been arrested for the homicide.

Defendant contends that it was error for the lower court to refuse him a continuance of his case until a subsequent term. The indictment was returned on the 11th day of March, and on that day the prisoner was arraigned, and after pleading not guilty his case was set for trial on the 21st of March.

He did not at that time make any objection to the trial of his case being set for the 21st, nor did he ask for a continuance; but on the 16th of March he appeared in court and moved for a continuance of the case, and filed in support of his motion an affidavit of Omar Mohamed. The grounds upon which the continuance was sought, as set forth in the affidavit, were that the defendant's brother desired to make defense for him by procuring alienists to examine him, and that there did not remain sufficient time within which to do that, and also that there were material witnesses living in the state of Massachusetts whose attendance could not be secured within the time allowed. This affidavit does not show who these witnesses are, what their testimony would be, or that there is any probability that their evidence would be secured if the continuance were granted. Neither does the affidavit present any basis for a continuance of the case to permit the examination of the accused by alienists. It is not indicated in the affidavit that the accused is insane, or was so at the time of the homicide. A motion for a continuance is always addressed to the sound discretion of the court. Of course, this discretion is one not to be abused; but, before this court will reverse a judgment because of the refusal to grant a continuance, it must affirmatively appear that the party seeking it was injured thereby. As before stated, the affidavit does not show who the witnesses are whose evidence is desired; it does not show what their evidence would be if they were present, so that the court might intelligently pass upon the materiality thereof; nor is it indicated in the affidavit that their evidence could be or would likely be procured if the continuance were granted. The other ground stated in the affidavit for the continuance, that the defendant's brother desired to employ alienists for the purpose of testifying in his behalf, presents no stronger case. It is not indicated that alienists could be procured who would testify upon this question, or that there is a reasonable probability that they could, and no sufficient reason is shown why they could not be procured in the ten days allowed by the court for the preparation of the case for trial. Clearly, there was no abuse of discretion in refusing the continuance upon the affidavit filed in support of the motion therefor. State v. Harrison, 36 W.Va. 729, 15 S.E. 982, 18 L.R.A. 224; State v. Maier, 36 W.Va. 757, 15 S.E. 991; State v. Madison, 49 W.Va. 96, 38 S.E. 492.

Again it is claimed that the court erred in not instructing the jury as to the different verdicts that could be found by it under the indictment. No request was made in this regard by the state or by the defendant. Undoubtedly the court has a right to instruct the jury in any sort of a case upon his own motion upon any matter about which he is of opinion the jury needs enlightenment, but it may be said as a rule that, where there is no request made for an...