State v. Belcher
| Decision Date | 21 June 1978 |
| Docket Number | No. 13863,13863 |
| Citation | 161 W.Va. 660,245 S.E.2d 161 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. William Robert BELCHER. |
Syllabus by the Court
1. Where, in a criminal proceeding, the case has been fairly submitted to a jury, their verdict will not be disturbed where there is evidence sufficient to support it.
2. "In a criminal prosecution, the State is required to prove beyond a reasonable doubt every material element of the crime with which the defendant is charged, and it is error for the court to instruct the jury in such a manner as to require it to accept a presumption as proof beyond a reasonable doubt of any material element of the crime with which the defendant is charged or as requiring the defendant either to introduce evidence to rebut the presumption or to carry the burden of proving the contrary." Point 4, Syllabus, State v. Pendry, W.Va. (1976) (227 S.E.2d 210).
3. "An instruction which does not correctly state the law is erroneous and should be refused." State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971).
Marshal G. Walls, Welch, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., Pamela Dawn Tarr, Asst. Atty. Gen., Charleston, for defendant in error.
William Robert Belcher was charged with murder in an indictment returned by a grand jury serving the Circuit Court of McDowell County. Upon trial by a jury he was found guilty of murder of the second degree and a judgment of conviction was entered by the court. This appeal followed.
The defendant, William Robert Belcher and his wife, Barbara, were divorced in May, 1973. The custody of the three children born of the marriage was awarded to Barbara who, shortly thereafter, married David Bayles. During a visit, which was reluctantly permitted, the defendant and his wife's new husband engaged in loud and angry argument over visitation rights and payment of support money for the children. This fracas led to the shooting and homicide which is the subject of this case. The defendant admittedly shot and killed David Bayles but alleged that such shooting was in self defense and was therefore justified.
As might be expected, there was a conflict in the evidence as to the actual shooting. The family of the deceased testified that the defendant fired first and that the deceased never did "pull" his gun. However, the testimony in the record does indicate that Bayles had a gun, fired it once and that the gun had been thrown into the Mud River by a brother-in-law of the deceased. Upon the evidence thus adduced the jury found William Robert Belcher guilty of second degree murder.
The many errors assigned by the defendant may be summarized as follows: (1) the conviction is contrary to the law and the evidence; (2) the giving of instructions offered by the state, numbered 1, 3, 4, 5, 6 and 7; and, (3) that the defendant was denied due process of law in that his defense was impeded by reason of the conduct of the family of the deceased in disposing of the deceased's gun.
As to the first assignment of error, the Court, upon careful examination of the record, finds that there was sufficient evidence to support the jury's verdict. That assignment is, therefore, without merit.
Regarding the error assigned by the giving of certain state instructions, we find that the assignments relating to instructions 1, 5, 6 and 7 do not warrant a reversal. State's instruction No. 1 informed the jury of the possible verdicts it may return, described the offenses and noted the statutory penalty for each offense. It has been held repeatedly by this Court that the giving of an instruction advising the jury of the verdicts which may be returned on an indictment, defining the elements of the offenses covered thereby, and stating the punishment which may be imposed following a conviction, is not error. Noting that jurors are not presumed to be familiar with the constituent elements of the various degrees of homicide, the Court has stated that such instruction is helpful and proper. State v. Roberts, 122 W.Va. 536, 11 S.E.2d 172 (1940); State v. Whitt, 96 W.Va. 268, 122 S.E. 742 (1924). See State v. Franklin, 139 W.Va. 43, 79 S.E.2d 692 (1953); State v. Painter, 135 W.Va. 106, 63 S.E.2d 86 (1950); and State v. Allen, 131 W.Va. 667, 49 S.E.2d 847 (1948).
Instruction No. 5 informed the jury that the intent to kill need not exist for any particular length of time prior to the actual killing. Such instruction has consistently been approved by this Court and the giving thereof does not constitute error. State v. Shaffer, 138 W.Va. 197, 75 S.E.2d 217 (1953); State v. Burdette, 135 W.Va. 312, 63 S.E.2d 69 (1951); State v. Porter, 98 W.Va. 390, 127 S.E. 396 (1925).
The defendant complains that State's Instruction No. 6, which informed the jury that the defendant had the burden of proving self defense, was an impermissible shifting of the burden to the defendant. This complaint is without merit and such instruction, while it in no manner relieves the state of the obligation to prove every material element of the crime beyond a reasonable doubt, has been approved by this Court on several occasions. State v. Pendry, W.Va., 227 S.E.2d 210 (1976); State v. Zannino, 129 W.Va. 775, 41 S.E.2d 641 (1947); State v. Coontz, 94 W.Va. 59, 117 S.E. 701 (1923).
Instruction No. 7 informed the jury that the accused is presumed to be innocent and that such presumption goes with him through all stages of the trial. It further tells the jury that the state must prove guilt beyond a reasonable doubt. The description of "reasonable doubt" is objected to by the defendant. He complains of the language: "If, after having carefully and impartially heard and weighed all the evidence, you reach the conclusion that the defendant is guilty with such degree of certainty that you would act upon the faith of it in your own most important and critical affairs, then the evidence is sufficient to warrant a verdict of guilty. While we do not particularly approve this definition, we do not believe that such language, considering the instruction as a whole, constitutes reversible error.
State's Instruction No. 3 noted that malice is a necessary element of the crime of murder and that it may be either express or implied. After further describing malice, the instruction...
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