State v. Bailey

• Decision Date: 11 July 1967
• Docket Number: No. 12622,12622
• Citation: 151 W.Va. 796,155 S.E.2d 850
• Parties: STATE of West Virginia v. Okery BAILEY.
• Court: West Virginia Supreme Court

Page 850

155 S.E.2d 850

151 W.Va. 796

STATE of West Virginia v. Okery BAILEY.

No. 12622.

Supreme Court of Appeals of West Virginia.

Submitted May 10, 1967.

Decided July 11, 1967.

Syllabus by the Court

1. 'If, on a trial for murder, the evidence is wholly circumstantial, but as to time, place, motive, means and conduct, it concurs in pointing to the accused as the perpetrator of the crime, he may properly be convicted.' State v. Beale, 104 W.Va. 617 (141 S.E. 7).

2. The jury is the trier of the facts and in performing that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses.

3. When in a criminal case the question of guilt depends upon the weight of evidence, or inferences and deductions from facts proved, the jury and not the court, is almost exclusively and uncontrollably the judge.

4. The weight of circumstantial evidence, as in the case of direct evidence, is a question for jury determination, and whether such evidence excludes, to a moral certainty, every reasonable hypothesis, other than that of guilt, is a question for the jury.

5. '* * * 'To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.' Point 1 Syllabus, State v. Bowles, 117 W.Va. 217 (185 S.E. 205).' Part, Point 4 Syllabus, State v. Etchell, 147 W.Va. (338) 339 (127 S.E.2d 609).

6. A verdict of guilty in a criminal case consistent with a reasonable interpretation of the evidence and circumstances proved will not be disturbed by this Court.

Thornhill & Kennedy, David T. Kennedy, Beckley, for plaintiff in error.

C. Donald Robertson, Atty. Gen., Leo Catsonis, Morton I. Taber, Asst. Attys. Gen., Charleston, for defendant in error.

CAPLAN, Judge.

At the January Term, 1965, of the Criminal Court of Raleigh County, the Grand Jury of said county returned an indictment against the defendant, Okery Bailey, charging her with the crime of murder. Subsequently, in June, 1965, the defendant was discharged after a trial at which the jury was unable to agree on a verdict. A second trial of this defendant on the aforesaid indictment was held in October, 1965, at which the jury returned a verdict of guilty of voluntary manslaughter.

On November 8, 1965, at the same term of court, the prosecuting attorney filed an information charging the defendant with the conviction of a prior felony under the name of Okur Harris. Upon being asked by the court if she was the same person as that charged in the information, the defendant stood mute. Thereupon, the court empaneled a jury to hear and determine that question. After the evidence was adduced in relation thereto the jury returned a verdict of 'guilty as charged in the within information.' The court then sentenced the defendant to confinement in the state penitentiary for a term of one to five years on the voluntary manslaughter conviction and in accordance with the provisions of Code, 1931, 61--11--18, as amended, imposed an additional five years by reason of the jury finding on the information. The motion of the defendant to set aside the verdict and to grant a new trial having been overruled and appeal to the Circuit Court having been denied, this appeal was prosecuted.

The evidence in the record of this case consists only of that adduced from witnesses who were called by the State. The defendant did not testify nor did she present any evidence on her behalf. The principal witnesses were Jimmy Hall, the husband of the deceased Geraldine Hall, and Marie Williams, a sister-in-law of the deceased.

The evidence reveals that approximately one year after his marriage to Geraldine, Jimmey Hall began a 'courtship' with the defendant, Okery Bailey. This affair, during which Hall and the defendant engaged in illicit relations 'many times', had continued over a period of six or seven years. Mr. Hall acknowledged that his wife had known of his 'courtship' with the defendant for the past year or year and a half but had never seen them together.

On the evening of September 22, 1964, Jimmy Hall left his home in Lillybrook, in Raleigh County, for the purpose of visiting a friend in the community of Besoco. While driving his automobile up Pickshin Road, which is on the way to Besoco, he saw the defendant walking toward him. Although he had made no plans to meet her that evening, Jimmy Hall stopped his vehicle on the right side of the road and engaged in conversation with the defendant. Mr. Hall did not get out of his car and the defendant stood in the road on the driver's side. He testified that after they had been talking for about five to ten minutes, during which time the car motor was running and the lights were on, the defendant turned and started walking away. She walked to the front of the car, turned right and disappeared into the high weeds and bushes which adjoined the road. Jimmy Hall then looked back and saw his wife coming up the road. Geraldine approached on the right side of the car and proceeded to the edge of the road in the general area where the defendant had disappeared into the underbrush. He said that she was shouting but he could not understand her. While Geraldine was standing approximately five to seven feet off the road, on the right-hand side of the automobile, her shouting was interrupted by two shots fired in 'quick succession'. Jimmy Hall testified that 'she fell right there,--spun around and fell.'

Marie Williams, who was accompanying Geraldine at the time she observed her husband with the defendant, came upon the scene at that time. She testified that Geraldine had been looking for her husband and when she saw him she began to run up the hill, toward her husband's car, shouting as she was running. She said Geraldine did not have a pistol in her hand. She further testified that although it was dark she could see by reason of a street light; that when the shots were fired Jimmy was in the car; and, that when she arrived where Geraldine was lying, Jimmy was 'over his wife' exclaiming 'She didn't have to do it.' The record reveals that this incident occurred in close proximity to the street light and that by reason thereof and the lights on Hall's car the area was well illuminated. The house next to the unoccupied house in front of which the Hall car was parked was the home of a Mr. Buster who was sitting on his front porch when the shooting occurred.

According to the testimony of Mr. Hall, when he approached his wife after the shooting, he opened her purse and took a gun out of it which he admitted belonged to him. He and Marie Williams then placed Geraldine in the automobile for the purpose of taking her to a hospital. On the way to the hospital, however, he stopped along Lillybrook Mountain and hid a gallon of moonshine whiskey, which was in his car, and also hid the gun which he said he had taken from his wife's purse. Geraldine was dead on arrival at the hospital. Later that night, during interrogation by the State Police, Jimmy Hall took one of the officers to the place where he had hidden the moonshine and the gun. While the gun was introduced into evidence, no attempt was made to determine its caliber or if it had been fired recently.

Dr. Thomas Wilson, who examined Geraldine Hall at the hospital, testified that the cause of death was a bullet wound in the head. He stated that the bullet entered the head 'right and above the right eye.' When he extracted the bullet, which he testified was large, out of shape and mashed on the one side, he gave it to Sergeant Lilly of the State Police. Upon this state of facts, Okery Bailey was apprehended, indicted for murder and convicted of voluntary manslaughter.

Seeking reversal of the judgment below the defendant relies on the following assignments of error: (1) The verdict is contrary to the law and the evidence and is not supported by the evidence; (2) the refusal of the trial court to direct a verdict for the defendant at the conclusion of the state's evidence; (3) the refusal of the trial court to declare a mistrial by reason of an attack on the defendant's character even though the defendant had not put her character in issue; (4) instructing the jury that defendant could be found guilty of second-degree murder; and (5) erroneous verdict on conviction under the information filed by the prosecuting attorney. Principally, the defendant asserts that the circumstantial evidence in this case was not adequate to connect her with the shooting which killed the decedent and that her guilt, therefore, was not proved beyond a reasonable doubt.

It is contended on behalf of the State that an appellate court must look to that evidence which tends to support the jury verdict and permit it to stand unless it is plainly wrong or the evidence relied upon by the jury was manifestly inadequate. It takes the position, of course, that the evidence in this case, though circumstantial, is clearly adequate to support the verdict. Although the appellant assigns several grounds of error on this appeal the principal ground relied on, and which is decisive of this case, is that the evidence adduced at the trial is not sufficient to establish guilt beyond a reasonable doubt and, therefore, cannot support the verdict of the jury. It is elementary in our system of criminal jurisprudence that an accused stands innocent until proved guilty. It follows, therefore, and it is equally well recognized, that the state must bear the burden of proving beyond a reasonable doubt the guilt of an accused. If this burden is not effectively borne, a verdict finding a defendant guilty must fall. Consequently, in order to determine the adequacy of proof of guilt in this case, it is necessary to carefully consider the evidence, much of which is related in the above stated factual situation.

Basically the evidence reveals that Jimmy Hall, husband of the deceased, had an...