State v. B. L. Galford.

• Decision Date: 23 November 1920
• Docket Number: No. 4118.,4118.
• Citation: 87 W.Va. 358
• Parties: State v. B. L. Galford.
• Court: West Virginia Supreme Court

87 W.Va. 358

State

v.B. L. Galford.

No. 4118.

Supreme Court of Appeals of West Virginia.

Submitted October 26, 1.920. Decided November 23, 1920.

1. Criminal Law Witnesses Defendant May Testify in His Oivn Behalf, and Testimony Must be Given Such Weight as it Merits.

A defendant charged with the commission of a criminal offense may testify in his own behalf at the trial, if he so desires, and the jury cannot arbitrarily refuse to consider his testimony, especially when not contradicted directly or indirectly by any other witness and not inconsistent with the facts and circumstances of the case as made out by the evidence against him, but must give it such weight as in their judgment it merits, (p. 363).

2. Homicide In Absence of Malice, Homicide Can Only be Vountary Manslaughter.

Malice, express or implied, is an essential element of murder In the first or second degree, and if it is absent the offense is of no higher grade than voluntary manslaughter, (p. 366).

3. Same "Malice" Implies a Mind Under the Sway of Reason and Excludes Idea of Sudden Passion.

The term "malice" implies a mind under the sway of reason. It excludes the idea of sudden passion aroused by an unanticipated and unprovoked assault brought about by an assailant without the fault of the person assailed, (p. 366).

4. Same Sudden Intentional Killing with Deadly Weapon by One Not at Fault is Prima Facie Killing in Heat of Blood and Voluntary Manslaughter.

A sudden intentional killing with a deadly weapon, by one who is not in any way at fault, in immediate resentment of a palpably gross provocation, is prima facie a killing in heat of blood, and, therefore, an offense of no higher degree than voluntary manslaughter, (p. 366).

5. Same Sudden Unintentional Killing with a Deadly Weapon by One Not at Fault Upon Gross Provocation Held Not Second Degree Murder.

When in such case the evidence discloses that no time intervened between the giving of the provocation and the act of killing, within which passion could have subsided and reason regained its dominion, and the fatal act itself was not attended by circumstances of extreme cruelty and inhumanity, nor preceded by conduct from which malice can be inferred, a conviction of murder in the second degree should be set aside and a new trial allowed, (p. 367).

6. Criminal Law Homicide Instructions on Theory of Murder May be Given Where Evidence Tends to Prove it; Defense of Accident Does Not Preclude Charge on Offense Which Evidence Tends to Show; Instructions to be Construed as a Whole.

Points 5, 6, and 7 of the syllabus of State v. Clifford. 59 W. Va. 1, approved and followed, (p. 367).

(Williams, President, absent).

Error to Circuit Court, Pocahontas County.

B. L. Galford was convicted of murder in tire second degree, and he brings error.

Reversed and remanded.

Roscoe 11. Brunat elder, N. 0. McNeil and. A. Al. Belcher, for plaintiff in error.

E. T. England, Attorney General, and Chas. Ritchie, Assistant Attorney General, for the State.

Lynch, Judge:

To reverse the judgment of conviction for murder in the second degree and confinement in the penitentiary for a period of fifteen years defendant B. L. Galford prosecutes this writ of error. Besides formal motions for a new trial and in arrest of judgment, he assigns as erroneous rulings on instructions, admission of evidence and duration of imprisonment.

Defendant admits the homicide charged in the indictment and seeks to exonerate himself from responsibility for infliction of the fatal wound upon the theory that it resulted, not from an intention on his part to commit a felony or inflict bodily injury upon George Duncan, the deceased, but from the accidental discharge of a revolver in his possesion, as police officer of the town of Marlinton, while they were engaged in a combat in which, defendant says, Duncan was the aggressor, and no witness contradicts him in this particular.

Until October 7,, 1919, the town sergeant was the only officer charged with the duty of maintaining order and preventing reckless operation of automobiles and suppressing immoral conduct on the public streets and in places of common resort in the town of Marlinton. As other duties may have required him to devote all or the greater part of his activities to their performance and did not permit him to police the town in the nighttime, when such practices prevailed, residents of the town and particularly members of the board of trade urged upon the municipal authorities the necessity for additional police protection, against injury by automobiles and flagrant immorality then apparently predominant in the municipality. In response to this appeal the authorities solicited and secured the services of Galford and assigned to him the duty of policing the streets and public places of the town between the hours of 2 o'clock in the afternoon and a like hour in the morning of each day of the week, and later if in his judgment the circumstances and conditions made the service necessary.

Suspecting the complicity of Duncan, a husband and father, in illicit sexual lewdness, and seeing him engaged on the streets in what Galford supposed was an effort to attract the attention of a certain woman, by casting gravel or other like substance against the wall or windows of the room or building occupied by her, he approached him and after some conversation too vulgar and profane to be detailed, admonished him of the impropriety of the conduct and advised him to return to his home. In this admonition and advice Duncan seemed to acquiesce without objection or protest and immediately acted as if his intention was to follow the direction so given. Whether he did or did not go to his residence does not appear. If he did, it was only for a moment as he soon returned to the main thorofares of the town and in the vicinity of the residence where Galford first saw him. Duncan frequently passed and repassed defendant while the latter was performing the duties allotted to him, and later entered the First National Bank building, ascended the stairway leading to the second floor, and shortly afterwards returned and stood on the steps of the building, where he and Galford met and there engaged in a combat in which Duncan received the gunshot wound from which he died almost instantly.

No one but Galford knows which was the aggressor or how the revolver was discharged. No other witness offers any plausible reason or explanation for the assault or the manner of inflicting the wound, except that the instrument was the revolver Galford was authorized to carry and did carry at that time. Duncan did not have a revolver or other like dangerous weapon, though Galford swears he supposed he had armed himself after the first conversation. From the time the participants first met near the residence or room of the woman referred to until engaged in the combat about 11 o'clock at night, no other conversation was had between them, and prior to the combat there was between them not the slightest disagreement, estrangement or enmity, so far as the evidence shows. They were friends and their friendship theretofore was without interruption at any time or for any cause, so Galford says without contradiction. If there was cause to excite animosity on the part of Duncan towards defendant, that cause is traceable only to their first interview, and its effect on his mental attitude may be presumed from a remark made by him to Clyde Evans only a few moments before the conflict, when, after asking the latter if he had seen Galford, Duncan said Galford "had been following him around that night, and that he was going to slap him if he didn't quit following him, and laughed and walked off."

The state introduced and examined numerous witnesses, but the testimony of only three, in addition to that given by Galford, has any material bearing or significance as to the manner in which the injury that caused death was inflicted, and none of them saw how it occurred or happened. Those witnesses were Johnson, the janitor of the bank building before which the combat occurred, who during the whole occurrence was sitting in a chair in the basement of the building where he slept at night, Lightner and McAllister who jointly occupied a second story room directly across a 40-foot street, none of whom saw the fight at any time while it progressed, or knew how it began, or who was the aggressor, how the wound was inflicted, or the provocation that produced it, until about the time, or after, the revolver was discharged, as their testimony discloses.

Though incoherent, Johnson's testimony, when properly understood, in substance and effect is: That while in the basement he heard some one up the street a considerable distance say: "By G d, if I come down;" and he did come down towards the house; and about the same time Duncan reached the front door of the bank building. Johnson identified neither participant until after Duncan was shot. Looking through the basement windows he saw only the shadow of one man, who he supposed was Galford, because, when he went to the pavement immediately upon hearing the shot, Duncan was lying prostrate partly on the sidewalk and partly in the street. Also, according to his version of the affair, after "considerable conversation" between the two men, "whoever they were," he heard some one, who he also supposed was Duncan, say "Ah," though he confessed he "couldn't hear what was said," but "kind of recognized that." Shortly afterwards "there was a scuffle; the fence was loose and it jarred up against the house. They scuffled for quite a bit and then every thing became quiet and I couldn't hear anything." Within a few seconds some one, whose voice he did not recognize, said: "You will jump on me; you will? No...