State v. Bertha Toney.

Decision Date24 February 1925
Docket Number(No. 5087.)
Citation98 W.Va. 236
CourtWest Virginia Supreme Court
PartiesState v. Bertha Toney.
1. Criminal Law Trial Court's Finding as to Qualifications of Juror Not Interfered With Unless Clearly Against Evidence.

Where the questions propounded by the trial court are sufficient to test a juror's ability to completely disregard anything he may have heard and read about the case, and to give the defendant a fair and impartial trial, fnd his answers are so unequivocal and satisfactory as to convince the trial judge of the juror's fairness and impartiality, it is the settled practice rot to interfere with the court's finding, unless clearly against the evidence, (p. 240).

(Criminal Law, 17 C..J. § 3580.)

2. Same On Defense of Insanity it is Competent for State in Rebuttal to Show Opinion of Witnesses as to Mental Soundness; Witness May Give Opinion as to Insanity Without Detailing Conversations.

Where one charged with crime defends upon the ground of insanity, or want of mental capacity to commit crime, it is competent for the State in rebuttal to show by persons who were well acquainted with the defendant, and had known her intimately for a considerable time, that they never observed anything indicating that the defendant was insane or that she was of low mentality, and to give their opinion that she was sane, and of ordinary mentality, without detailing all of the conversations they had with her or all of her conduct which they observed, (p. 242.)

(Criminal Law, 16 C. J. § 1540.)

3. Same Refusal to Instruct on Point Already Sufficiently Covered

by Other Correct Instructions Not Error.

It is not error to refuse to instruct on a point already sufficiently covered by other correct instructions given in the case. (p. 246.)

(Criminal Law, 16! C. J. § 2506.)

4. Homicide Finding of Dead Body Bearing Injuries Sufficient to

Cause Death Sufficiently Shows Criminal Agency.

Criminal agency is sufficiently shown where a dead body is found with injuries apparently sufficient to cause death, under circumstances which exclude inferences of accident or suicide, (p. 248.)

(Homicide. 30 C. J. §531)

5. Same Direct Evidence Is Not Essential to Prove Corpus Delicti; Corpus Delicti May Be Proved by Circumstantial Evidence.

Direct evidence is' not essential to prove the corpus delicti in any case. It may be proved as any other fact may be proved which is essentiel to establish the guilt of the accused, namely, by circumstantial evidence which produces the full assurance of moral certainty on the subject, (p. 248.) (Homicide. 30 C. J. §531.)

(Note: Parenthetical references by Editors. C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, Fayette County. Bertha Toney was convicted of voluntary manslaughter, and she brings error.

Affirmed.

Dillon, Nuckolls & Mohan, for plaintiff in error. E. T. England, Attorney General, and B. Dennis Steed, Assistant Attorney General, for the State.

Woods, Judge:

The defendant was indicted jointly with her mother, father and brother for conspiring together to murder her infant child, and in pursuance of this conspiracy, the life of the child was taken. Electing to be tried separately, she was tried at the April term, 1923, of the Circuit Court of Fayette County, and convicted of murder in the second degree. The court, on motion of the defendant, set the verdict aside, for the reason stated on the record that some testimony upon the trial of the case was inadvertently taken in the absence of the defendant. Another trial was ha 1 at the July term, 1923, of said court, and resulted in her conviction of voluntary manslaughter. She moved for a new trial, which was refused, and was sentenced to four years in the penitentiary. From this judgment she appeals to this court.

The evidence shows that the defendant, a girl of nineteen years, gave birth to a child; that a few Lours thereafter some small boys, in play, found a dead infant in a large concrete culvert under the road a few yards from defendant's home; that the child had a man's string tie, identified as having belonged to defendant's father, tightly drawn and knotted around its neck; and that it was wrapped in an old bed quilt and in a sack. A paper with the name of defendant's father thereon was also found in the sack. Some of the facts connecting the accused with the crime will be commented upon later in this opinion. The doctor who made the physical examination of the body testified that from the color of the face, the bulging eyeballs and the protrusion of the tongue, the child had lived after it was born, and that death was caused by constriction around its neck. There were some spots of blood on the comfort and also some tar. It was shown that the honse in which the defendant lived with her father, had been only a few days before painted with tar, and that there was tar on the weeds in front of his home. The defendant pleaded not guilty, and interposed a defense of mental incapacity and insanity; two physicians under whose care she had been for ten days after the alleged murder, as well as Dr. Guthrie, an expert on mental diseases, testified that in his opinion the defendant was a mental defective. In rebuttal, the State placed a number of witnesses on the stand, who after showing that they had known the defendant for years, and had had occasion to observe her actions and demeanor, stated that she was intelligent and showed no signs of low mentality; that they had never observed anything out of the ordinary wrong with her; and that she acted as other young folks of the community.

In the brief filed by her learned counsel there are four assignments of error. Each will be considered and disposed of in their order here.

The first attacks the validity of the jury. J. D. Kincaid, one of the petit jurors, on his voir dire, testified that he was not related to the defendant, had read an account of the occurrence in the Montgomery News, had formed or expressed no opinion as to defendant's guilt or innocence, was conscious of no bias or prejudice against her, and felt free to throw aside any of the impressions he may have formed by reason of having read and heard of the case, and could give the defendant a fair and impartial trial just as if he had never heard of it at all. In response to questions propounded by counsel for defendant, he stated that he probably might have formed some opinion in the beginning; having heard that there was a hung jury on the other trial that would put aside all opinion he might have had on the former occasion as to guilt or innocence. On being asked if he should learn that there was not a hung jury, would that change his opinion about it, and to which he replied that if he heard that there was not a hung jury he would not know anything about it, but if the jury gave a verdict of guilty he would feel that she was guilty. He was then asked if he had heard that the jury convicted, the accused, would he assume the accused was guilty, and to which he replied that he would. If he had heard the jury had returned a verdict of guilty he would assume that the party was guilty. He was again interrogated by the court, replying that he lived at Kincaid, twelve or thirteen miles from Boncar, the place of the alleged offense; that he felt now that he could give the defendant a fair and impartial trial just as if he had never heard of the case, and completely disregard anything he may have heard or read of it. Under the law the defendant is entitled to a panel of twenty jurors free from bias or prejudice, whose minds are in a condition to hear, consider and properly weigh the evidence as it is presented to them at the trial uninfluenced by what they have heard or read of the case before trial. State v. Johnson, 49 W. Va. 684. In the last cited case the juror on his voir dire disclosed the fact that he had read the papers at the time of the killing; that he thought that he had expressed an opinion which was likely a decided one; that he was still of the same opinion and if sworn as a juror in the case would go into the jury box with the same opinion, and he would have to hear some good evidence to change it. The court there held that when a juror on his voir dire admits that he has formed and expressed an opinion as to the guilt or innocence of the accused, and expresses any degree of doubt as to whether such previously formed opinion would affect his judgment in arriving at a proper verdict in the case, it is error to admit him to the panel. To the same effect, the Schnelle Case, 24 W. Va. 767, and Hatfield's Case, 48 W. Va. 561. These cases are relied upon by counsel for the defendant. An examination of each of these cases shows that the juror expressed doubt as to his ability to discard what he had heard and read of the case, and decide the case according to the law and the evidence. The courts have not succeeded in establishing any judicial test by which the question of the competency of a juror can be determined. No fixed and invariable rule can be laid down. Robinson v. Commonwealth, 104 Va. 888. The standard of Lord Mansfield was that a juror should be as white paper and judge of the issue merely as an abstract proposition upon the evidence produced before him. This has long since been discarded as impracticable. The trend of recent decisions is in the direction of limiting, rather than extending the disqualification of jurors by reason of mere opinion. To have the effect of disqualifying a venireman, his opinion must be substantial, and not a mere impression which will not interfere with his fairness. Commonwealth v. McCue, 103 Va. 870; Bust v. Beid, 124 Va. 1. His opinion must have been deliberate and decided in order to disqualify him. State v. Money penny, 81 W. Va. 362. Reading; accounts in newspapers does not disqualify. Where the juror has previously expressed a decided opinion but swears he has no bias and can decide according to the evidence, it was held he was competent. State...

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  • State v. Flint
    • United States
    • West Virginia Supreme Court
    • 26 d2 Fevereiro d2 1957
    ...issue ought not to be set aside, unless the error is manifest. Reynolds v. U. S., 98 U.S. 145, 25 L.Ed. 245 * * *'. See State v. Toney, 98 W.Va. 236, 127 S.E. 35. Although a venireman, by 'reason of something he has heard or read, may have entertained an opinion as to the guilt or innocence......
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    ...106 W.Va. 289, 145 S.E. 634; State v. Richards, 101 W.Va. 136, 132 S.E. 375; State v. Larue, 98 W.Va. 677, 128 S.E. 116; State v. Toney, 98 W.Va. 236, 127 S.E. 35; State v. Hatfield, 48 W.Va. 561, 37 S.E. One of the four jurors who were permitted to try the case over the objection of defend......
  • State v. Carduff, 10766
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    ...its finding that the jurors were free from bias, prejudice, or partiality and were competent to serve in that capacity. In State v. Toney, 98 W.Va. 236, 127 S.E. 35, this Court held in point 1 of the syllabus that: 'Where the questions propounded by the trial court are sufficient to test a ......
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