State v. Beale, (No. 5854.)

CourtSupreme Court of West Virginia
Writing for the CourtWOODS
Citation141 S.E. 7
PartiesSTATE . v. BEALE.
Docket Number(No. 5854.)
Decision Date22 November 1927

141 S.E. 7


(No. 5854.)

Supreme Court of Appeals of West Virginia.

Nov. 22, 1927.

Rehearing Denied Jan. 16, 1928.

(Syllabus by the Court.)
[141 S.E. 8]

Hatcher, P., and Lively, J., dissenting.

Error to Circuit Court, Mingo County.

Clyde Beale was convicted of first degree murder, and he brings error. Affirmed.

W. A. Daugherty, of Pikeville, Ky., James Damron, of Williamson, and W. S. Wysong, of Webster Springs, for plaintiff in error.

Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

WOODS, J. Clyde Beale was tried in the circuit court of Mingo county for the murder of Rissie Perdue, and upon a verdict of murder in the first degree, without recommendation, was sentenced to be hanged. From this judgment he brings error.

Beale, at the time a resident of Nicholas county, was visiting his half-brother, Levi Layne, at the latter's home at Vulcan, Mingo county, on the date of the homicide. Layne was conducting a store a short distance from his dwelling. Jesse Perdue lived a mile or more from the Layne store. On Sunday afternoon, Jesse Perdue and his wife, Rissie, the latter being 24 years of age, started out on a walk for the purpose of taking a few pictures. A heel came off of one of Mrs. Perdue's shoes, and the couple stopped in at Layne's store, some time after 4 o'clock, for the purpose of purchasing a pair of slippers. Some one inquired concerning liquor, and Beale went out and returned with a bottle. All present drank. A storm kept the parties in the store for some time. After it had subsided the four above named proceeded to.the Layne home, where Perdue and his wife were introduced to the members of the Layne household. While Perdue was acquainted with Layne, all the parties, including Beale and Layne, were strangers to his wife. Mrs. Perdue complained of being "doped" all evening, and after arriving at the Layne home tried repeatedly to go home. Her husband was beastly drunk, and apparently did not know much about what took place during the visit. While Layne denied it, his wife, daughter, and servant girl testified that shortly before dark he compelled them, by reason of his violent and threatening conduct, to flee from the home and take refuge in the barn for a while. This fact finds support in the testimony of disinterested neighbors to the effect that Layne came out into the yard and discharged his revolver several times. Later we find Rissie Perdue out in the yard between the store and the Layne dwelling in company with the defendant, who is admittedly the last person who saw her alive. Her body was found on the bank of Tug river on the Tuesday morning following—a distance of some 31/2 miles from the Layne homestead. A post mortem examination disclosed two blood clots, one on the temple and the other in the right mastoid region, and the further fact that the deceased had met her death before her body was placed in the river.

The state contends that Beale and Layne had intercourse with Rissie Perdue, and that she was either killed by Beale while resisting his assault, or that she was killed to cover up the evidence of such intercourse. And to this end they rely on the testimony of Minnie Layne, the wife of Levi Layne, Maudie Layne, a daughter, and Pricey Sloan, a servant, who seem to have been cowed into inaction regarding Rissie Purdue's welfare by reason of the terror induced by the acts of Layne and defendant. Some 30 minutes after Minnie Layne had gone to bed, she saw Layne (in his night clothes), Beale, and Mrs. Perdue pass the dining room window. All the women in the house testify to the fact that the two men had Mrs. Perdue down on the ground under the grape arbour. Levi Layne's wife, in explaining what was going on, says: "You have a pretty good idea what it is. He was with her; she was lying down; he was down with her." And Pricey Sloan said Mrs. Layue called Layne an opprobrious name. Layne's daughter, Maudie, says she saw the same thing, and that her father said, "Give me a little, " three or four times; Clyde Beale was holding his hands over deceased's mouth and throat at the time; that her father was down on Mrs. Perdue. Pricey Sloan was also looking out of the window and saw all three down on the grass, Layne on top of the woman and Clyde Beale holding his hand over deceased's face; that they were there for about 20 minutes. Layne came back to the house when Mrs. Layne called. Clyde Beale remained outside with Mrs. Per-

[141 S.E. 9]

due. In about half an hour Clyde Beale called to Layne to come quick that there was something wrong with the woman, that she was strangling or choking. Maudie Layne heard them down in the garden and heard a struggling noise, and heard Clyde Beale call her father to "come down here quick, Levi, " about three times, that the woman was dying, choking or something was the matter with her or something like that, " and that her father said he was not going down there, that there might be something done, and they would lay it on him; but he got up and went down. Mrs. Layne states that defendant called three or four times before her husband got up and dressed and left. Pricey Sloan heard a "loud scream" just prior to Beale's call for Levi to come down. Layne was gone for an hour or more. Beale, Perdue, and Layne testify that Beale came to the house between 10 and 11 o'clock and awoke Perdue, who got up and dressed and went with Beale to look for the woman. Beale's whereabouts after he left Perdue at the latter's home about 2 o'clock are not known, except that be states that he was out looking for the woman.

Defendant contends that he interfered with Rissie Perdue's going home as a matter of protection, since she was under the influence of liquor and seemed to be out of her head. He likewise denies any improper intercourse with the woman. While he and Layne admit being outside at the time the women say they saw them with Rissie Perdue under the grape arbour, they both deny the acts so attributed to them. Layne states that he had been out to the toilet and was on his way back when he met Rissie Perdue at a point between the garden gate and the house. Beale states that he was going to the toilet, and that as he stepped out of the kitchen door he met Layne returning. He states that the deceased was there. At this time Layne explains that his wife called him the opprobrious name, and that he went on into the house. He also relies on evidence to the effect that early in the evening after they had assembled at the Layne home that while Mrs. Perdue was hallooing and claiming that she was "doped" that her husband struck her in the face and knocked her against the window sill. He seeks to show that the blood clots discovered at the post mortem examination were caused by Perdue's rough treatment of his wife, and not caused by any acts of his own.

Under the Constitution and laws of West Virginia, a crime can be prosecuted and punished only in the state and county where the alleged offense is committed. Const. art. 3, § 14. However, in the same provision it is provided that upon petition of the accused, and for good cause shown, the trial may be removed to some other county. But the accused bears the burden of proving to the satisfaction of the court the existence of such good cause. State v. Weisengoff, 85 W. Va. 271, 101 S. E. 450. It was urged in the instant case that an impartial jury could not be obtained in the county. In his petition the prisoner states that the sheriff had assumed an hostile attitude toward him, and was prejudiced against him. He sets up the fact that Levi Layne, who also stands indicted for the same offense charged against him, had secured an injunction against the sheriff restraining the latter from permitting Layne Jo be removed from the jail against his will or being subjected to grilling at the hands of any member of the department of public safety. Counsel for the prisoner cite no authority for the claim that hostility of the sheriff, merely as such, constitutes ground for change of venue. We have found no authority to that effect. The sheriff, charged with the enforcement of the law, is naturally, and should be, interested in bringing criminals to justice for crimes committed in his realm. So long as he acts in good faith, his activities in this direction are proper, and a prisoner charged with crime may not complain. Then, the only weight that may be given to the claim of hostility here, as a ground for change of venue, is the charge that he and his deputies "have been circulating throughout the county false reports to poison the minds of the public and the people of Mingo county against your petitioner and for the purpose of bringing about his conviction." What these reports were the petitioner does not state. We are referred, however, to the newspaper articles which are made part of the petition. These articles merely attempt to give an account of the alleged crime, and are very dispassionately written, considering the high public importance of the case. They give not only the side of the prosecution, but that of the defendant as well. They do not bear any impress that supports the contention of the prisoner; nor are they in the light of the evidence in the case false or inflammatory. The petition is supported by but two affidavits. The first is that of A. R. Stepp, chief of police of the city of Williamson. It is a recital in effect that by virtue of his office he is thrown in contact with not only the people living within the corporate limits of said city, but is acquainted with a large majority of the citizens of the county living outside of the city; that he has heard expressions from many of the people of the city and has heard the case discussed among people living outside of said city; that reports have been circulated to the effect that the defendants Beale and Layne had committed rape upon the deceased, had ravished and killed her, and thrown her body into the river; that from the...

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