State v. Angelina
| Decision Date | 04 November 1913 |
| Citation | 80 S.E. 141,73 W.Va. 146 |
| Parties | STATE v. ANGELINA. |
| Court | West Virginia Supreme Court |
Submitted October 14, 1913.
Syllabus by the Court.
Before reversing a judgment for error in overruling a motion to continue, it should appear that the trial court abused its discretion, and that the mover of the motion has been prejudiced thereby.
Hypothetical questions to expert witnesses, on a trial for homicide, need not cover all the undisputed facts proven. The opposite party may, if desired, protect himself by including all such facts in other hypothetical questions propounded to the same witnesses on cross-examination.
On a trial for homicide where the evidence tends to show a mortal wound by defendant, and a subsequently self-inflicted wound by deceased which may or may not have been mortal, it is error to tell the jury in instructions propounded by the state, either (1) that defendant who inflicted the first mortal wound is guilty of first degree murder notwithstanding the subsequently self-inflicted wound by deceased may have accelerated or been the immediate cause of his death; or (2) that defendant should be found so guilty if upon the evidence the jury should find beyond a reasonable doubt, that deceased would have died from other causes, or would not have died from the wound inflicted by defendant had not other causes operated with it.
Instructions so limited ignore the well established rules of homicide (a) that if after a mortal wound is inflicted by one person another independent responsible agent in no way connected in causal relation with the first, intervenes and wrongfully inflicts another injury, the proximate cause of the homicide, the latter and not the former is guilty of murder; and (b) that if such intervening responsible agent wrongfully accelerates death, he and not the agent first to wound is guilty of the homicide.
Where in such cases the evidence justifies it, and it is sought to hold the one inflicting the first blow or wound guilty of the homicide, because his act resulted in rendering the one on whom his mortal wound had been inflicted irresponsible and to cause him to inflict upon himself another mortal wound, or a wound accelerating his death, the instructions given should be so framed as to present clearly that theory of the case.
Error to Circuit Court, Marion County.
Jim Angelina was convicted of murder in the first degree, and brings error. Reversed.
Rollo J. Conley and J. G. Prichard, both of Fairmont, for plaintiff in error.
A. A. Lilly, Atty. Gen., and John B. Morrison and J. E. Brown, Asst. Attys. Gen., for the State.
On an indictment defendant was found guilty of murder in the first degree and adjudged to be hung in expiation of the crime.
He was indicted August 14, 1912, about three weeks after the homicide, and put on his trial the next day, assisted by counsel then appointed by the court. Counsel then moved the court for a continuance to August 19, to enable them to confer with the prisoner, a young Italian who could not speak English, to consult expert medical men, and to prepare for the trial. This motion was supported by the affidavit of one of the counsel so appointed, and by other evidence. If we had been sitting in the trial in place of the circuit judge, we would have granted the reasonable motion of counsel; but the trial judge has a discretion, and we cannot say from the record that he abused that discretion or that the prisoner was prejudiced by the adverse ruling of the court. We ought to see prejudice before reversing for such error, so our cases hold. State v. Madison, 49 W.Va. 96, 38 S.E. 492; State v. Harrison, 36 W.Va. 729, 15 S.E. 982, 18 L. R. A. 224.
The prisoner's motion for a change of venue based on local prejudice and threats of lynching was also overruled. As we have concluded the judgment must be reversed and defendant awarded a new trial, on other grounds, and as the same conditions may not now or hereafter exist in the county where the homicide occurred, we need not consider that question on this hearing.
Another ground of error is, that hypothetical questions to physicians were allowed, calling for their opinions, which did not cover all the undisputed facts proven. The argument is made that these questions, propounded to the State's witnesses, elicited entirely different responses from those propounded to the witnesses for defendant, which included all the facts, wherefore defendant was prejudiced. The authorities concur in holding that such questions need not cover all the facts, even the undisputed facts, in the case. 1 Wigmore on Evidence, section 682, pp. 778, 779; Bowen v. Huntington, 35 W.Va. 682, 14 S.E. 217; State v. Cook, 69 W.Va. 717, 72 S.E. 1025; Stearns v. Field, 90 N.Y. 640; Jackson v. Burnham, 20 Colo. 532, 39 P. 577. The rule is different when it comes to instructions to the jury. Binding instructions may not without error omit facts or theories on which the case may turn. The remedy for the side opposing such hypothetical questions is on cross-examination to repeat the hypothetical questions to the witnesses with the omitted facts included and elicit answers to the questions based thereon. Williams v. State, 64 Md. 384, 1 A. 887, 5 Am. Cr. Rep. 512.
Lastly as to the instructions given and refused. We have examined them all. All the instructions given on behalf of the State, except those numbered 9 and 13, are clearly good. They propound only well settled rules and principles of criminal law, and the objections thereto are not relied on here. And as to the instructions proposed by defendant, which were rejected, they were clearly inapplicable...
To continue reading
Request your trial