State v. Atwell
| Decision Date | 27 May 1930 |
| Docket Number | 6593. |
| Citation | 153 S.E. 583,109 W.Va. 257 |
| Parties | STATE v. ATWELL. |
| Court | West Virginia Supreme Court |
Submitted May 7, 1930.
Syllabus by the Court.
Order of proof is generally within discretion of trial court exception as to order of proof, being within discretion of trial court, arises where party objecting may have been prejudiced by irregular admission of evidence; admission of evidence in rebuttal, in murder prosecution, in respect to unlighted cigarette in hand of deceased, held erroneous.
Although the order of proof is, as a rule, within the discretion of the trial court, an exception arises where it appears that the party objecting was, or may have been, prejudiced by the irregular admission of evidence.
Additional Syllabus by Editorial Staff.
Admission of shirt worn by deceased showing location of bullet wounds was not erroneous as against general objection.
The shirt was at least proper evidence to demonstrate location of wounds, and, if improper as real evidence to prove absence of powder marks thereon, defendant should have requested court to limit evidentiary value to first purpose.
Error to Circuit Court, McDowell County.
Cleveland Atwell was convicted of murder in the second degree, and he brings error.
Reversed and a new trial awarded.
Harman & Howard, of Welch, for plaintiff in error.
Howard B. Lee, Atty. Gen., and W. Elliott Nefflen, Asst. Atty. Gen for the State.
The defendant, Cleveland Atwell, was convicted of murder in the second degree for the homicide of Sherman Darby, who and his brother, Earnest Darby, suffered almost instant death from gunshot wounds inflicted by the defendant about 9:15 p. m. June 9, 1928, at Hensley, a mining town in McDowell County. The three men were married, living, with their families, at Hensley as employees of the Fordson Coal Company. Sherman Darby and Atwell, each of whom had several small children, occupied neighboring houses, separated by inclosures. The tragedy was the result of ill feeling growing out of family quarrels between the two households over their children. Mrs. Sherman Darby had been fined by a justice some time previously for "abusing" the Atwell children; and two or three hours before the shooting an altercation occurred between her and Atwell which she at the time provoked by accusing the Atwell children of throwing rocks at her children. The quarrel was taken up by her husband, who attempted to invade the premises of Atwell to execute threats of violence against him, but was restrained by her and her father from so doing. When Darby started toward Atwell, the latter retired to his house, and, securing a revolver, returned to his yard, where he stood for a while holding the gun in his hand awaiting the movements of Darby. The shooting occurred about three-fourths of a mile from the place of the first encounter. Earnest Darby wore a white shirt without coat or vest.
The theory of the state is that the defendant, without provocation, attacked the Darbys. The defendant, on the other hand, relies upon self-defense, claiming that he had been attacked by them in such manner as to cause him reasonably to apprehend death or great bodily harm at their hands.
The points of error are: (1) That the evidence does not warrant the verdict; and (2) that improper evidence highly prejudicial to the defendant was admitted over his objection. We are of opinion that the...
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