State v. Arrington

CourtSupreme Court of West Virginia
Citation106 S.E. 445
Docket Number(No. 4150.)
Decision Date08 March 1921

106 S.E. 445


(No. 4150.)

Supreme Court of Appeals of West Virginia.

March 8, 1921.

(Syllabus by the Court.)

Error to Circuit Court, Wyoming County.

Ed. Arrington was convicted of second degree murder, and he brings error. Reversed and remanded.

Grover C Worrell, of Mullens, J. M. McGrath, of Princeton, and R. E. Hughes, of Charleston, for plaintiff in error.

E. T. England, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

LYNCH, J. From a judgment of 12 years' imprisonment in the penitentiary upon a verdict of a jury for second degree murder, Ed. Arrington, defendant, prays to be released

[106 S.E. 446]

and the ease resubmitted to another jury for retrial. He shot Mike Yek February 9, 1920, at Iroquois', Wyoming county, and from the wound so inflicted Yek died a moment later. Those who witnessed the tragedy, besides deceased, were Albert Foy, Oakey Helmandollar, and defendant, Arrington, each of whom testified in the order named, Foy on behalf of the state, the other two on behalf of the defendant

Foy's version of the affair is substantially this: He was walking along the street about 8 o'clock in the evening, and had just passed defendant and Helmandollar going in the opposite direction, when Yek approached them, Foy then being not more than 18 feet distant from them. He heard one of the two men say, "Who is that?" to which the other responded, "Some d—— n sneak, " but was unable to determine which of the two was the questioner and which made the response. Immediately "they commenced to mix up a little, * * * and this fellow Yek run back a little piece; I don't know whether Arrington hit him or not; and he (Yek) had his hand on his hip; I don't know whether he had his hand in his pocket, or whether he was pulling up his pants. * * * He started toward Arrington, ana I saw the pistol, " and then the shot was fired.

Helmandollar and defendant substantially agree in their statement of what occurred. The former was standing not more than 12 feet from Arrington when Yek approached. According to their story, Yek said to defendant, "Where are you going?" to which the latter replied. "I am going up the road, " and Yek responded, "You are a d—— d liar, " whereupon a conflict occurred. Yek stepped back a few paces, then started towards defendant with his hand in his hip pocket. The latter says he heard some one, he does not know who, say "Look out, Ed.!" and "I jerked out my gun and shot."

The first assignment of error goes to the sufficiency of the indictment, but we see no serious defect in it, and defendant has not pointed out any. The next assignment likewise was not discussed by defendant or relied on by him before this court, and we are unable to perceive any possible ground of prejudice to him in permitting Mrs. Yek to state what little she knew of the fatal shooting of her husband, namely, the hour when he left home to go to the store, when next she saw him and his condition at that time, the location of the wound, his age, nationality, occupation, and children. However, proof of the number, names, ages, and condition of the children or their mother can have no relevancy to the issues involved in a trial for homicide.

Assignments 3, 4, 5, and 6 present the question whether the court erred in refusing to permit defendant to testify before the jury as to his purpose in firing the fatal shot. He was asked, "Now what was your purpose in firing the gun?" The court refused to permit him to answer, except for the purpose of completing the record, and his reply then was, "To save my own life." He was asked further, "Did you have any other purpose in firing the shot?" and after a similar refusal to permit his answer to go to the jury, he replied, on the record, "No." Since malice, express or implied, is an essential element of murder in the first or second degree (State v Douglass, 28 W. Va. 297; State v. Panetta, 85 W Va. 212, 101 S. E. 360; State v. Galford, 105 S. E. 237), defendant had the right to disprove it in any legitimate manner. His mental attitude towards deceased at the instant he shot was material to his defense. In a trial for homicide, where one of the issues is self-defense, it is competent for the accused to testify concerning his belief and feelings as to the conduct of the deceased at the time of the killing, and to state the motive or purpose which prompted the fatal shot. These statements should have gone to the jury, to be considered by them in connection with other facts and circumstances in the case, and to receive such weight and credence as in their opinion they merited. State v Evans, 33 W. Va. 417, 10 S. E. 792; State v. Alderson, 74 W. Va. 732, 82 S. E. 1021; State v. Panetta, cited.

Assignments 7, 8, 9, and 10 involve questions relating to the admissibility of threats by the deceased to do bodily harm to the accused, made in the presence of other persons, but not communicated to him. Evidence of communicated threats tends to throw light upon the mental attitude of the accused towards deceased, while...

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