State v. Bail, No. 10684

CourtSupreme Court of West Virginia
Writing for the CourtGIVEN; HAYMOND
Citation88 S.E.2d 634,140 W.Va. 680
PartiesSTATE of West Virginia, v. Jennings Roscoe BAIL.
Decision Date27 July 1955
Docket NumberNo. 10684

Page 634

88 S.E.2d 634
140 W.Va. 680
STATE of West Virginia,
Jennings Roscoe BAIL.
No. 10684.
Supreme Court of Appeals of West Virginia.
Submitted Jan. 26, 1955.
Decided March 15, 1955.
Dissenting Opinion July 27, 1955.

Page 637

Syllabus by the Court.

1. A defendant in a criminal case can not be deprived of a trial by a jury composed of jurors of the county wherein he stands charged, except upon a clear showing that a fair and impartial jury can not be obtained from that county.

2. A finding by a trial court in a criminal case that a fair and impartial jury can not be obtained in the county wherein defendant stands charged, must be clearly supported by facts appearing in the record.

3. 'Where the evidence relied on to convict one of crime is in whole or in part circumstantial, the accused is entitled to an acquittal unless the fact of guilt is proven to the actual exclusion of every reasonable hypothesis of innocence.' Point 2, Syllabus, State v. Hunter, 103 W.Va. 377 [137 S.E. 534].

4. In the trial of a criminal case, where the State has established facts prima facie warranting the admission of a written alleged confession of guilt by defendant, and the defendant denies material parts or the execution thereof, it is not error to admit the writing and to leave to the jury the questions of fact in dispute, and the weight to be given to the alleged confession.

5. Upon trial of a defendant indicted for murder, where death of decedent is contended by the State to have resulted from a [140 W.Va. 681] bullet fired from a certain caliber rifle, there being substantial evidence tending to show that defendant fired such a rifle and that a large number of shots were fired by other persons about the same time from the premises from which defendant fired, it is not prejudicial error to admit as real evidence a number of guns, of different caliber and type, found on such premises.

6. Upon trial of a defendant indicted for murder, it is not prejudicial error to admit as real evidence empty cartridge cases found a short time subsequent to the homicide at the premises from which the State contended the shot which killed decedent was fired, there being substantial evidence to the effect that the cartridges were fired from the gun in the possession of defendant at the time of the homicide.

7. 'Upon an inquiry as to the admissibility of evidence, its weight or probative value is not the criterion or test. If it tends even slightly to prove a fact relevant to any issue in the case and material or forceful in the determination thereof, it is admissible.' Point 3, Syllabus, State v. McKinney, 88 W.Va. 400 [106 S.E. 894].

8. 'The refusal of a proper instruction or the giving of an improper one raises a presumption of injury and prejudice, warranting a new trial, unless the court can see from the record the complaining party was not injured.' Syllabus, Buffington v. Lyons, 71 W.Va. 114 [76 S.E. 129].

9. Though instructions given to a jury are to be considered as a whole, the giving of 'A bad instruction is not cured by a good one given to the jury, and with which it is in conflict.' Point 2, Syllabus, State v. Garner, 97 W.Va. 222 [124 S.E. 681].

10. The discretion vested in a trial court to determine whether a defendant in a criminal case has been prejudiced by statements of counsel for the State, during the trial, will not be interpreted with by an appellate court unless it clearly appears that the discretion has been abused.

11. Code, 61-11-16, as amended, often referred to as the Indeterminate Sentence Statute, must be read inconnection with, and [140 W.Va. 682] as part of, the order sentencing a defendant to the State penitentiary.

M. E. Boiarsky, D. L. Salisbury, Charleston, E. L. Eakle, Clay, for appellant in error.

John G. Fox, Atty. Gen., Cletus B. Hanley, Asst. Atty. Gen., for defendant in error.

GIVEN, Judge.

The grand jury of the Circuit Court of Clay County, on June 3, 1953, returned an

Page 638

indictment against Jennings Roscoe Bail, charging that he 'on the ___ day of May, 1953, in the said County of Clay, feloniously, wilfully, maliciously, deliberately and unlawfully did slay, kill and murder one Charles Frame * * *'. On the following day defendant entered a not guilty plea to the charge. On the fifteenth day of the same month, the court entered an order continuing the trial of the case unto a special term of the court to be held on the 27th day of July, 1953, and set the case for trial on that day. By the same order the court found 'that qualified jurors, not exempt from serving, cannot be conveniently found in this county for the trial' of the case, and ordered that eighty jurors be drawn from Braxton County to attend for service as jurors in Clay County on July 27, 1953. Pursuant to the order, jurors were summoned from Braxton County. The jurors so summoned appeared before the Circuit Court of Clay County and from that venire a panel of twelve jurors was duly selected and qualified. After hearing the evidence, the jury returned a verdict finding defendant guilty of murder of the second degree and the court sentenced him 'at a term of [140 W.Va. 683] confinement in the Penitentiary of this State generally'. This Court granted a writ of error to defendant.

For some time prior to the death of Frame there existed a strike engaged in by some of the employees of the Elk River Coal and Lumber Company, and probably others. This group may, for convenience, be referred to as strikers. Opposing the strikers was a group of other employees ofthe company. For convenience, this group may be referred to as employees. Over the period of the strike, large numbers ofstrikers and employees were active participants in behalf of either the strikers or the employees. Intense bitterness between the groups developed and possibly continued in intensity until the death of Frame. The principal point of the operations of thestrikers appears to have been at 'Widen Hill', a point on the public highway leading from Dundon, in Clay County, in a northeasterly direction through Dille, also in Clay County. At Widen Hill a road, apparently a private road over property owned by the Elk River Coal and Lumber Company, intersects the public highway and leads to the town of Widen, the principal point of large coal operations of that company, about one mile from Widen Hill. Following the public highway from Widen Hill toward Dille, about nine tenths of one mile, is found the point where Frame was killed. Across a small stream from that point, and to the left looking toward Dille, is the property referred to throughout the record in this case as the cookshack. Continuing on the public highway, about one half mile, is the village of Dille.

The cookshack, of cinderblock construction, about 25 feet by 44 feet in size, situated on a parcel of about four acres of land owned by Dewey Triplett, one of the strikers, was used by the strikers for the purpose of cooking, eating, and gatherings of the strikers generally, when not actively engaged on the picket lines. On the parcel of land owned by Dewey Triplett there were located, at the time of the homicide, in addition to the cookshack, three small dwellings and a trailer used as a residence. Shortly after midnight of May 6, 1953, a number of automobiles, estimated by witnesses to have been from twenty five to one hundred, [140 W.Va. 684] referred to throughout the record as a convey, being driven by individuals of the group opposing the strikers, drove from Widen Hill to Dille, and from Dille back to Widen Hill, passing the cookshack in going to Dille and again in returning to Widen Hill. There is much confusion in the record as to just what was done or said by those riding in the convoy at the times the convey passed the cookshack. The strikers testified in large numbers to the effect that there were much soundings of horns, cursing of the strikers and threats against the strikers, to the effect that they would be attacked by the employees, about four o'clock of the same morning. These matters were denied by those riding in the convey who testified, except that several persons riding in the convey testified to the effect that there was blowing of horns while the convey was passing the cookshack. Shortly after four o'clock of the same morning a

Page 639

second convey, consisting of a number of automobiles, probably eleven, droven from Widen Hill toward Dille and, while passing the cookshack, were shot into by the strikers, located in or about the cookshack. Frame, who was driving the leading automobile in the second convoy, was killed, and others of the convoy were wounded and bullet holes were found in a number of the automobiles in the convoy. Again the evidence is highly conflicting, at least twenty seven witnesses on behalf of the strikers testifying to the effect that those in the convoy fired at or toward those at the cookshack. Several of these witnesses testified to the effect that shots were fired from the leading automobile, the one being driven by Frame. There appears to be no question that several of those riding in the convoy, probably special deputy sheriffs, possessed firearms at the time, and nineteen guns were found at the cookshack, or in or about the residences on the Triplett property, shortly after the shooting. Within a short time after the shooting, members of the Department of Public Safety arrived at the cookshack and arrested those found at or about the cookshack, including the defendant. There is much evidence tending to establish that the strikers, on or shortly before the day of the [140 W.Va. 685] shooting, received information to the effect that those at the cookshack would be attacked about four o'clock of the morning on which the shooting occurred. Several of the members of the Department of Public Safety testified to the effect that some ofthe strikers had, about that time, requested protection from such an attack. There seems to be no...

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21 cases
  • State v. Oldaker, s. 15727
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    ...been particularly probative of defendant's conduct or knowledge, it tended to prove that part of the vehicle was stolen. State v. Bail, 140 W.Va. 680, 88 S.E.2d 634 (1955); State v. Nazel, 109 W.Va. 617, 156 S.E. 45 (1930). Syllabus Point 2 of State v. Rector, 167 W.Va. 748, 280 S.E.2d 597 ......
  • State v. Kirtley, 13912
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    ...different from the erroneous instruction renders the error nonprejudicial. State v. Putnam, W.Va., 205 S.E.2d 815 (1974); State v. Bail, 140 W.Va. 680, 88 S.E.2d 634 (1955); State v. Toler, 129 W.Va. 575, 41 S.E.2d 850 (1946). The rule in these latter cases would, however, make the failure ......
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