State v. Bowyer

• Decision Date: 19 December 1957
• Docket Number: No. 10873,10873
• Citation: 101 S.E.2d 243,143 W.Va. 302
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Henry BOWYER.

Page 243

101 S.E.2d 243

143 W.Va. 302

STATE of West Virginia v. Henry BOWYER.

No. 10873.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 11, 1957.

Decided Dec. 19, 1957.

Syllabus by the Court

1. Malice express or implied is an essential element of murder of the first or second degree.

2. When an affray is provoked by the deceased, the use of a deadly weapon by the defendant in killing the deceased will not give rise to a presumption of malice.

3. 'A sudden intentional killing with a deadly weapon, by one who is not in any way at fault, in immediate resentment of a gross provocation, is prima facie a killing in heat of blood, and, therefore, an offense of no higher degree than voluntary manslaughter.' Point 10, syllabus, State v. Clifford, 59 W.Va. 1 .

4. When a verdict of a jury finding the defendant guilty is wholly without evidence on a point essential to such finding, or the evidence is plainly insufficient to warrant such finding by the jury, such verdict should be set aside and a new trial awarded.

Carl B. Vickers, Fayetteville, for plaintiff in error.

W. W. Barron, Atty. Gen., Giles D. H. Snyder, Asst. Atty. Gen., for defendant in error.

HAYMOND, Judge.

At the regular September Term, 1955, of the Circuit Court of Fayette County, the defendant, Henry Bowyer, was indicted for the murder of Jack Weeks in August 1955. To the indictment the defendant entered his plea of not guilty. At the trial which was held on January 16 and 17, 1956, during the regular January Term of that court, the jury returned a verdict which found the defendant guilty of murder of the second degree. The circuit court overruled the motion of the defendant to set aside the verdict and grant him a new trial and by final judgment entered May 14, 1956, sentenced the defendant to confinement in the penitentiary for an indeterminate period of from five years to eighteen years. To that judgment this Court granted this writ of error February 4, 1957, upon the petition of the defendant.

The homicide for which the defendant was indicted occurred about ten o'clock on Monday night, August 8, 1955, at a tavern operated by Weeks known as Log Cabin Tavern in the Town of Pax in Fayette County at which beer, soft drinks and food were served. The building in which the tavern was operated was a one story structure with an attic, had a main entrance at the front of the building, and contained at least one large room. To the left of the main entrance was a row of several booths, each of which consisted of two benches located against and at right angles to one of the sidewalls of the building with a table between the two benches in the booth. To the right of the main entrance and opposite the row of booths was a lunch counter, the top of which was about four feet above the floor and in front of which were at least three individual stools which were used by patrons served at the counter. Behind the counter were shelves and other equipment which contained food and supplies used in serving the customers. At or near the end of the counter farthest from the main entrance was a large refrigerator which extended above the top of the counter and on the counter near the refrigerator was a metallic cash register when the homicide occurred.

The defendant and Weeks, a married man thirty three years of age whose height was five feet eight inches and whose weight was 185 pounds, had been friends and acquaintances for several years and, according to the evidence, no trouble had occurred between them before sometime in May 1955. At that time a quarrel occurred at Cirtsville in Raleigh County, during which Weeks, who was intoxicated, abusive, and armed with a revolver, shot at the defendant and the bullet from the revolver struck one of his shoes. Though he was arrested for some minor offense, he was never charged with or prosecuted for his attack upon the defendant. Later Weeks apologized and there was an apparent reconciliation between Weeks and the defendant.

Both before and after the trouble at Cirtsville the defendant was a frequent visitor at the tavern and his visits on different occasions lasted from a few minutes to several hours. The defendant and the wife and a ten year old son of Weeks were also friends and the boy and the defendant were frequently together. After the trouble at Cirtsville the defendant carried a .32 caliber Smith and Wesson revolver and he had it in his possession at different times when he visited the tavern.

A witness produced by the State testified that earlier during the same day on which the homicide occurred he and the defendant had a conversation about the trouble which had occurred between the defendant and Weeks at Cirtsville and that the defendant told the witness that he was not satisfied about it and that he could not let Weeks 'run over him'. Another witness produced by the State, who had been employed at the tavern by Weeks, testified that during the day before the day the homicide occurred the defendant spent several hours at the tavern while Weeks and his wife were away and at that time the defendant had a revolver in his pocket but that she did not see the defendant take it from his pocket or display it. This witness also testified that on the Tuesday preceding the Monday on which the homicide occurred the defendant was present at the tavern, also during the absence of Weeks and his wife, and that when the witness told the defendant that she was frightened by a boy who was also present the defendant took a revolver from his pocket and gave it to her; that he then told her that if Weeks 'ever pulled a gun on him that he was going to put him away in a white shirt'; and that sometime later that day, and after Weeks and his wife had come to the tavern, she returned the revolver to the defendant. Another witness produced by the State testified that about a week before the homicide occurred the defendant was in his truck parked about 50 or 60 feet from the tavern, that there was a revolver under a blanket on the seat of the truck, and that the defendant showed him the revolver. Jackie Weeks, the ten year old son of the deceased, testified that about two or three weeks before the homicide occurred the defendant had in his possession in the tavern the revolver with which he shot his father and that on another occasion he had seen the revolver in the glove compartment of the defendant's truck. He also testified that he saw the same revolver at the tavern when he came there a short time after the shooting had occurred and that the defendant told him that his father had shot first; that the defendant also told him to get a pint of whisky from his truck and throw it in the creek; and that he found the whisky and put it in the bathroom at the tavern where it was later found by a witness for the State after the boy told him where he had put it. Notwithstanding the foregoing statements of the defendant and the occasions when he had a revolver in his possession, the defendant did not at any time engage in any conduct or perform any overt act which indicated that he intended to make any attack upon Weeks or to induce or cause Weeks to attack him.

At the time the homicide occurred the only persons present and who saw what took place were Weeks, his wife Madge, the defendant, who had come to the tavern earlier that evening, K. T. Worrell, a police sergeant from Norfolk, Virginia, and David Gilpin of Havre de Grace, Maryland. Worrell and Gilpin were brothers-in-law and they had come to Pax to spend the night with their wives' parents who resided in Pax. They had been in Pax only a few minutes before they came to the tavern shortly after nine thirty o'clock. They knew the defendant and they were also acquainted with Weeks. When they entered the tavern they went to one of the booths opposite the counter and distant from it approximately 15 or 18 feet. At that time Weeks was behind the counter and the defendant occupied a seat on one of the three stools in front of the counter or did so within a few minutes after Worrell and Gilpin went to the booth. They ordered some beer which Weeks brought to the booth where each of them occupied a seat on opposite sides of the table between the seats in the booth. Within a few minutes Worrell indicated to Mrs. Weeks, who at that time was also behind the counter, that he wanted another order of beer and she brought the beer to the booth and returned to her place behind the counter. Immediately after she did so Weeks fired one shot from a .32 caliber Smith and Wesson revolver which at the time contained five cartridges. The bullet struck the front of the cash register on the counter, ricocheted upward and broke the glass at the top of the machine but did not strike the defendant or Worrell or Gilpin. When he fired the shot Weeks was about four or five feet from the defendant with only the counter between them. Weeks then moved to his right near and partially behind the refrigerator and was standing at that place when the defendant drew a .32 caliber Smith and Wesson revolver which contained five cartridges, reached across the counter between him and Weeks, and fired one shot at Weeks. The bullet entered his left cheek, took a downward course, struck his fourth cervical vertebra and lodged in the right side of his neck. Weeks fell to the floor near and behind the refrigerator and, after telling his wife who immediately came to his assistance that he needed help and was going to die, became unconscious and remained in that condition until his death about forty hours later in a Beckley hospital to which he was promptly taken by a brother of Mrs. Weeks who at her request was called by Gilpin by telephone and arrived at the tavern within a few minutes after the shooting ended.

After the defendant fired at Weeks he turned in the direction of Worrell and Gilpin and put the revolver in his right coat pocket. At Worrell's request he handed the revolver to Worrell with the handle...