State v. Andrew Thornitill

• Decision Date: 03 November 1931
• Docket Number: (No. 6996)
• Citation: 111 W.Va. 258
• Court: West Virginia Supreme Court
• Parties: State v. Andrew Thornitill

111 W.Va. 258

State

v.Andrew Thornitill

(No. 6996)

Supreme Court of Appeals of West Virginia.

Submitted October 27, 1931.

Decided November 3, 1931.

Criminal Law

A householder, not himself at fault, who, in attempting to expel an intruder, is attacked by the intruder, and who honestly believes and has reasonable grounds to believe that his assailant is about to take his life or to do him great bodily harm, may kill his adversary in order to avoid the apparent danger. The homicide is justifiable.

Error to Circuit Court, Logan County.

Andrew Thornhill was convicted of murder in the second degree, and be brings error.

Judgment reversed; verdict set aside;

new trial awarded.

John Chafin and Hager & Glenn, for plaintiff in error.

Howard B. Lee, Attorney General, R. A. Blessing, and W. Elliott Nefflen, Attorneys General, for the State.

Maxwell, Judge:

Convicted of murder in the second degree in the circuit court of Logan County and sentenced to eighteen year's confinement for the killing of Taylor Fraizer Bowling, the defendant has been awarded a writ of error.

The sole bill of exceptions embraces all of the evidence and instructions. The state moves to dismiss the writ of error because it is said that no order was entered by the trial court or the judge thereof in vacation, within proper time, making the hill of exceptions a part of the record. In support of its motion the state relies upon repeated adjudications of this Court that a bill of exceptions will not be considered unless made part of the record by proper order. Typical of the many decisions on this point are State v. Yoes, 67 W. Va. 546; Hall v. Shelton, 93 W. Va. 592.

Though the printed record does not disclose an order of the trial court or judge thereof in vacation making the bill of exceptions a part of the record, there has recently been filed in this Court a nunc pro tunc order of the said judge entered the 13th of October, 1931, as and for the 17th of December, 1930, the last named date being the date on which the bill of exceptions was signed by him. Appended to the said nuno pro tunc order is a certificate of the clerk of said court stating that the said order "was signed by the Judge of the Circuit Court of Logan County, "West Virginia, in vacation of said court, on the 17th day of December, 1930, but was for some reason inadvertently not spread upon the order book * * *." On the basis of fact thus certified by the clerk it was proper for the judge in vacation to enter the said nunc pro tunc order. "An order can be entered nunc pro tunc to make a record of what was previously done by the court although not then entered, but where the court has wholy omitted to make an order which it might or ought to have made, it cannot afterward be entered nunc pro tunc." Payne v. Biggs, 80 W. Va. 57. More recent cases on. same' point: Cameron v. Cameron, 105 W. Va. 621, and Stannard Supply Co. v. Coal Co., 110 W. Va. 560. 158 S. E. 907. The bill of exceptions thus being made a part of the record, it follows that the state's motion to dismiss the writ of error must be overruled.

As to the instructions, we are of opinion that the two which were given on motion of the state were of usual and approved substance, and that the subject matter of the two instructions tendered by the defendant and refused by the court was embraced within defendant's instruction No. 4, which was given.

The f edendant also challenges rulings of the court in admitting certain testimony offered by the state and in rejecting certain testimony offered by the defendant. These assignments of error cannot be considered because not made the subject of specific bills of exceptions. State v. May, 111 W. Va. 118, 160 S. E. 918. Therefore, the sole matter to be considered on this review is the sufficiency of the evidence to warrant a conviction of murder.

The record discloses the following facts: About 9:30 of the evening of November 23, 1929, defendant's daughter was married to Clifton Hoover, at her father's home at Crown, Logan County, in the presence of her immediate family and a neighbor. Very soon after the nuptial ceremony the deceased, with whom there were several loud and boisterous men, all uninvited, appeared at the home of the defendant and demanded admission. Over his protest, this band of intruders gained admittance to the home and therein engaged in dancing and promiscuous drinking. Deceased, a man weighing 180 pounds, and, according to much evidence, under the influence of liquor, began to abuse and mistreat defendant's said son-in-law, a young man weighing.about 115 pounds. Defendant intervened and insisted that deceased leave the home immediately, which he did only to return within a few minutes and repeat his attack upon the young man. He was then ejected by defendant without violence, and while in a next door neighbor's yard flourishing a pistol, deceased engaged in the use of vile and abusive language, within the hearing of several witnesses, concerning defendant and his family. For the third time he entered the home, this time by the rear door, declaring he was "going to run the place." The evidence is uncontradicted that after shoving defendant's wife violently against the wall, he renewed his assault upon the son-in-law, seized him by the throat, and while brandishing a pistol, applied vile epithets to him. Defendant again intervened, seizing deceased by the shoulder and started to eject him from the house. A scuffle followed, in the course of which deceased exclaimed to defendant, "I will shoot your (profane epithet) brains out." Defendant thereupon drew his pistol, shot and killed deceased. The movements of deceased at the time of making the threat indicated an effort on his part to draw a pistol, and the circumstances were such as to warrant defendant in the belief that it was the purpose of deceased to shoot him.

In the light of the foregoing circumstances, particularly when coupled with the fact that defendant and deceased were practically strangers to each other and that there had been rio ill feeling between them, we perceive no grounds upon which a jury might properly base a verdict of murder in the second degree. Such verdict must be based on malice established by the evidence beyond all reasonable doubt. The evidence clearly and unequivocally discloses that Bowling was a trespasser upon defendant's property; that he, while evidently in a state of intoxication invaded the defendant's home and by his own ribald and abusive language and by threat and assault precipitated and provoked a situation which resulted in his death. Our courts recognize one's right to take the life of another if necessary in defense of his person, habitation or property where that other manifestly intends and endeavors by violence to commit a forcible or atrocious felony upon either. It is justifiable homicide. The justification of his act must depend upon the circumstances as they appear to him. Parrish v. The Commonwealth, 81 Va. I. A defendant, to excuse the slaying, must have acted under an honest belief at the time that it...