State v. Bickle.
| Decision Date | 14 November 1903 |
| Citation | 53 W.Va. 597 |
| Parties | State v. Bickle. |
| Court | West Virginia Supreme Court |
Evidence that the defendant while confined in jail had an opportunity to escape and declined to do so, is not admissible, (p. 611.).
Where a defendant has had a full, fair trial upon indictment for a felony, the appellate court will not reverse the judgment and set aside the verdict rendered after such trial, for an error in not enforcing a rule of practice in the trial of the case, when it clearly appears from the whole case that the rights of the defendant could not possibly have been prejudiced or effected thereby, (p. 612.).
Appeal from Circuit Court, Braxton County. Action by the State of West Virginia against Chris Bickle. Judgment for the State and plaintiff appeals.
Affiirmed.
Attorney General, for defendant in error.
Morrison & Eider and Himer & Kelley, for plaintiff in error.
McWhorter, President:
Chris Bickle was convicted of murder in the first degree on the loth of September, 1902, in the circuit court of Braxton County upon an indictment therein found by the grand jury for the murder of his wife, Salina Bickle, in April, 1902, to which judgment the prisoner obtained a writ of error. The second assignment of error was to the action of the court in overruling the demurrer to the indictment and the motion to quash the same. The indictment was framed after the form prescribed in the statute for indictment for murder and conformed very closely thereto. This question has been so well settled and so often passed upon that I deem it unnecessary to give it further notice here, indeed it does not seem to be at all relied upon by the defendant's counsel.
The first assignment of error is that the court erred in giving to the jury, at the instance of the State, the five several instructions set out in bill of exceptions No. 1, which instructions are as follows:
"The court instructs the jury that if they have a reasonable doubt of the defendant's guilt they must acquit him, but a doubt to authorize an acquittal must be a substantial doubt arising from the insufficiency of evidence and not a mere possibility of innocence, and a reasonable doubt is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say that they feel an abiding conviction to a moral certainey of the truth of the charge.
The court instructs the jury as a matter of law that in considering the case the jury are not bound to go beyond the evidence to hunt up doubts nor must they entertain such doubts as are merely chimerical or conjectural. A doubt to justify an acquittal must be reasonable and must arise from a candid and impartial investigation of all the evidence in the case, and unless it is such that were the same kind of doubt interposed in a graver transaction of life it would cause a reasonable and prudent man to hesitate and pause it is insufficient to authorize a verdict of not guilty. If after considering all the evidence the jury can say they have an abiding conviction of the truth of the charge they are satisfied beyond a reasonable doubt.
The court instructs the jury that a reasonable doubt is not a vague or uncertain doubt and that what the jury believe from the evidence as men they should believe as jurors.
The court instructs the jury that a doubt produced by undue sensibility in the mind of a juror in view of the consequences of his verdict is not a reasonable doubt and the juror is not allowed to create sources of material for doubt by resorting to trivial or fanciful suppositions and remote conjectures as to a possible state of facts differing from that established by the evidence. The oath of a juror imposes on him no obligation to doubt where no doubt would exist if no oath had been administered. When a circumstance is of a doubtful character the accused is entitled to the benefit of the doubt. If, however, all the facts established necessarily lead the mind to the conclusion that the defendant is guilty though there be a bare possi- too
bility merely, not supported by some good reason therefor that he is innocent, the jury should find him guilty. A juror's duty to the State, to society and to himself is equally sacred to hold for conviction if he has an abiding satisfaction of defendant's guilt and if after deliberation no juror is possessed of any good reason to doubt the defendant's guilt it is the duty of the jury to find him guilty.
The court instructs the jury that they are the sole judges of the evidence and that they may believe or refuse to believe any witness and that when passing upon the credibility of any witness they may take into consideration his interest in the matter in controversy, the reasonableness or unreasonableness of his statement, his bias or prejudice in the matter, if any appear and his demeanor upon the witness stand."
The first four of these instructions are upon the question of reasonable doubt. This question of "reasonable doubt" has been discussed so many times and has been so much "defined" that it would seem that the juror of average intelligence would be able to know what is meat by it, even though he might not be able to give anything like a technical definition. It can hardly be necessary to present in so many phases the meaning of "reasonable doubt." Jurors when impannelled are sworn to well and truly try and true deliverance make between the State and the prisoner at the bar, and the State is bound to prove all. the material allegations contained in the indictment and. failure on any one point necessary to be proved, to satisfy the jury beyond a reasonable doubt, the prosecution fails. In section 12, Underhill on Criminal Evidence, and note 5, page 17 and cases there cited, especially in State v. Talmage, 107 Mo. 543, 557; (17 S. W. 990,) and in Cross v. State, 132 Ind. 65, (31 N. E. 473), the question is very thoroughly discussed, and the instructions 1, 2, 3 and 4 come within the purview of the rulings and definitions therein. While No. 3 is in the exact words of instruction No. 5 approved in State v. Dickey, 48 W. Va. 326, and the State's instruction No. 5 in case at bar is substantially the same as No. 4 in said Dickey Case. The court did not err in giving the instructions for the State set out in bill of exceptions No. 1.
The third assignment is that the court erred in refusing to set aside the verdict of the jury as contrary to the law and the evidence and because of the admission of improper evidence and the rejection of proper evidence, as set out in further bills of exceptions.
Chris Bickle, together with his wife, his son Hanse' Bickle, a young man about 19 years of age, his daughter Delia, about 21 years of age and Ida, younger, and his son Sullivan Bickle, about 10 years of age, and a child about 11 months of age, and Jane Bickle, the mother of the prisoner, who was 81 years of age; and who had been with them in their house some two weeks, occupied a house which contained four rooms. The old mother, Jane, slept in a room by herself in. the back end of the house, the room next to her was occupied by the four children, the two sons sleeping in one bed and the two daughters in the other, next to their room was the dining room and beyond the dining room, at the front of the house, was the room occupied by Chris Bickle, his wife, Salina, and the babe. All four of the rooms opening into each other. On the night of the sixth of April, after the whole family had retired, about ten or eleven o'clock, Mrs. Salina Bickle was shot in the head. The shot woke up Hanse and the old woman, Jane. Hanse said he heard some one pass his bed and called to Delia to know whether she was up. Jane called to know whether there was a shot fired or not. Some of the children said they heard their father call to their mother and he called to them to bring a light into the room that their mother was dead or couldn't talk, or something to that amount. There is a conflict in the evidence of the mother of Bickle and his children as to who got into the room first; but a lamp was lighted and it was found that Mrs. Bickle had been shot, the ball entering the right eyebrow ranging a little downward and a little inward, as stated by Doctor Vermillion who made the examination. The bed was standing in the corner of the room with the head against one wall and the side against another. There is no conflict of testimony as to the position occupied by Bickle and his wife and the child. Bickle was behind next to the wall, his wife in front with her right side to him and the child lying 6n her left arm in front of both of them. When found she was lying nearly on her back slightly turned to the left side, her head elevated a little above the level of the body upon the pillow. When they retired a rifle gun was in a rack on the wall over the head of the bed. The face of the woman and her nightcap were powder burnt and her eyebrows and eyelashes were burnt off. There was no other wounds or marks of violence upon the woman's body, the doctor, Vermillion, who first made the examination, testified that "Her eyelashes and eyebrows were burnt off and some powder burns on the lower part of her eye, and that the nightcap she had on was powder burnt." The doctor testified that there were no indications of any struggle on the part of the woman. Pie also stated that from the range of the bullet the shot must have been fired from the right side and of course above the level of the body, and that the shot was at short range and he thinks that the gun could not have been more than three or four feet from her head. The gun which had been hanging in the rack at the head of the bed was gone. Hanse called attention to the fact that the gun was not in its place. Hanse says that when he said the gun was gone that "Pap said lets...
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