State v. Bragg, 10701

• Citation: 87 S.E.2d 689,140 W.Va. 585
• Decision Date: 07 June 1955
• Docket Number: No. 10701,10701
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia, v. Malcolm Cameron BRAGG.

Page 689

87 S.E.2d 689

140 W.Va. 585

STATE of West Virginia, v. Malcolm Cameron BRAGG.

No. 10701.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 25, 1955.

Decided March 8, 1955.

Dissenting Opinions March 24 and June 7, 1955.

Syllabus by the Court.

1. Under Code, 61-11-12, the venue for murder lies in the county where the fatal injury is inflicted, or if death occurs in another county, venue also lies in such other county.

2. Provided an accused did not intentionally become intoxicated so as to prepare himself for the commission of the crime, intoxication of an accused is a defense to a charge of murder of the first degree, when the degree of intoxication is such as to render the accused incapable of premeditation and deliberation.

3. In a prosecution on a charge of murder of the first degree, it is not error for the trial court to refuse instructions offered by the defendant, which permitted the jury to find that defendant at the time of the alleged murder was in such a state of intoxication that he was incapable of intent or premeditation, where there is no substantial evidence in the record to support such theory of defense.

4. Code, 56-6-37, provides: 'But nothing in this or the previous section [Code, 56-6-36, which provides for a certificate in lieu of a bill of exceptions, and Code, 56-6-37, which, inter alia, provides how the certificate in lieu of a bill of exceptions, or a bill of exceptions is to be considered, and that the instructions in the transcript are all to be presumed to have been given by the trial court] shall be construed as compelling the appellate court to notice or review any matter arising upon a specific exception noted in the transcript of the evidence and proceedings reported unless such exception be specifically pointed out in assignments of error, brief of counsel, or otherwise specifically brought to the attention of the court.'

5. 'Where a bill of exceptions certifies all the evidence and shows in addition thereto the rulings of the trial court in admitting or refusing to admit evidence upon the trial, and the exceptions thereto taken at the time, this court will consider such exceptions without special bills of exceptions thereto, provided the particular questions are specified distinctly in the record on the motion for a new trial, or in an assignment of error, or brief of counsel in this court, so that this court may readily and safely find the particular questions or evidence to which the exceptions relate, but this court will not consider such exceptions without such specification, although the bill of exceptions certifying the evidence notes them.' Hinton Milling Co. v. New River Milling Co., pt. 3 syl., 78 W.Va. 314 .

6. To the extent that the holding and the statements in the opinions in Ritz. v. Kingdon, 139 W.Va. ---- ; State v. Cruikshank, 138 W.Va. 332 ; Isabella v. West Virginia Transportation Co., 132 W.Va. 85 ; Crookshank v. Hall, 139 W.Va. ---- ; Alloy v. Hennis Freight Lines, Inc., 139 W.Va. ---- ; and State v. Davis, 139 W.Va. ---- ; Haldren v. Berryman, 109 W.Va. 403 ; Graner v. Boring, 105 W.Va. 505 ; Stewart v. Pollack-Forsch Company, 105 W.Va. 453 ; Tuggle v. Belcher, 104 W.Va. 178 ; Draper v. Mercer Hardware & Furniture Company, 104 W.Va. 144 ; State v. Henderson, 103 W.Va. 361 ; Stat v. John, 103 W.Va. 355 ; State v. John, 103 W.Va. 148 ; Roberts v. Lykins, 102 W.Va. 409 ; Dransfield v. Boone-Armstrong Motor Company, 102 W.Va. 370 ; Tredway v. New River & Pocahontas Consolidated Coal Company, 102 W.Va. 135 ; Proudfoot v. Pocahontas Transportation Company, 100 W.Va. 733 ; Trippett v. Monongahela West Penn Public Service Company, 100 W.Va. 319 ; State v. Noble, 96 W.Va. 432 ; Moorefield v. Lewis, 96 W.Va. 112 ; Guyandotte Coal Company v. Virginian Electric & Machine Works, 94 W.Va. 300 ; State v. Jones, 77 W.Va. 635 ; Bartlett v. Bank of Mannington, 77 W.Va. 329 ; Angrist v. Burk, 77 W.Va. 192 ; Hill v. Norton, 74 W.Va. 428 ; Ireland v. Smith, 73 W.Va. 755 ; State v. Henaghan, 73 W.Va. 706 ; State v. Bingham, 42 W.Va. 234 ; Halstead v. Horton, 38 W.Va. 727 ; Gregory's Adm'r v. Ohio River Railroad Company, 37 W.Va. 606 , are inconsistent or in conflict with the holding of this Court in point 3 of the syllabus of Hinton Milling Co. v. New River Milling Co., 78 W.Va. 314 , and point 5 of the syllabus of this case, such holding is overruled and such statements are disapproved.

7. To the extent, and to the extent only, that the holding and statements in the opinions in the cases of Hinton Milling Co. v. New River Milling Co., 78 W.Va. 314 ; Bond v. National Fire Insurance Company, 77 W.Va. 736 ; Walters v. Appalachian Power Company, 75 W.Va. 676 ; Parr v. Howell, 74 W.Va. 413 ; Wright v. Ridgely, 67 W.Va. 319 ; Fuller v. Margaret Mining Company, 64 W.Va. 437 ; McClanahan v. Caul, 63 W.Va. 418 ; Williams & Davisson Company v. Ferguson Contracting Company, 60 W.Va. 428 ; Foley v. City of Huntington, 51 W.Va. 396 ; Bodkin v. Arnold, 48 W.Va. 108 ; Kay v. Glade Creek & Raleigh Railroad Company, 47 W.Va. 467 ; and McDodrill v. Pardee & Curtin Lumber Company, 40 W.Va. 564 , are overruled and disapproved in point 4 of the syllabus of Ritz v. Kingdon, 139 W.Va. ---- , such holding is reinstated and such statements are approved.

8. Where, in a criminal prosecution, the trial court, over defendant's objection, admits evidence, which is both inadmissible and prejudicial, the error is saved for appellate consideration where a motion for a mistrial is immediately made, specifically setting forth the inadmissible evidence, and the court's ruling on the motion for a mistrial is made an assignment of error.

9. 'Where, in a trial for murder, allegedly committed with the use of a revolver, the accused voluntarily takes the witness stand in his own behalf, it is reversible error for the trial court, over objection of counsel, to permit counsel for the prosecution to inquire of and require the accused to answer, whether he had a license to carry a pistol at the time the alleged killing took place.' Point 1, Syllabus, State v. Foley, 128 W.Va. 166 .

10. An error in the admission of evidence not objected to by the defendant is deemed waived by him.

11. 'It is the duty of the trial court when a case is submitted to a jury so that their verdict may be guilty of murder in the first degree to instruct them that in the event they return that verdict they may further find that the accused be punished be confinement in the penitentiary, in which case he will be sentenced to life imprisonment, and that otherwise the accused will be punished with death.' State v. Goins, 120 W.Va. 605 .

W. Hayes Pettry, Emerson W. Salisbury, Charleston, for plaintiff in error.

John G. Fox, Atty. Gen., Harold A. Bangert, Jr., Asst. Atty. Gen., for defendant in error.

RILEY, Judge.

Malcolm Cameron Bragg was indicted for murder at the January, 1954, term of the Intermediate Court of Kanawha County, and convicted of murder of the first degree without recommendation for mercy. Upon writ of error to the Circuit Court of Kanawha County, after consideration of the petition, the transcript of the evidence, and the bills of exceptions, that court affirmed the judgment of the Intermediate Court of Kanawha County. To the judgment of the Circuit Court of Kanawha County, affirming the judgment of conviction had in the intermediate court, the defendant prosecutes this writ of error.

The defendant was indicted in the Intermediate Court of Kanawha County, at the January, 1954, term thereof. On the 1st day of March, 1954, the trial having come on to be heard, the defendant moved the court that the case be continued until the next term, which motion was overruled by the court. The defendant then moved that the venue of the trial upon the indictment be changed to some other county in West Virginia, which motion was likewise overruled. To these rulings the defendant objected and excepted, and the defendant then entered his plea of not guilty.

On March 1, 1954, a jury was impaneled and qualified, and the case having been heard, the jury, on March 3, 1954, rendered the following verdict: 'We, the jury, find the defendant guilty of murder in the first degree.' The defendant, by counsel, having moved the court to set aside the verdict of the jury and grant defendant a new trial, which motion the court denied, the defendant then objected and excepted to the court's ruling. Thereupon the court immediately pronounced judgment that the defendant be punished by death.

On March 8, 1954, the defendant, Malcolm Cameron Bragg, filed in the intermediate court a pauper's affidavit, for the purpose of securing from the court reporter a transcript of the evidence and proceedings of the trial had in the intermediate court without charge to the defendant, for use in making defendant's application for a writ of error to the circuit court, which affidavit assigned thirteen grounds upon which counsel for defendant stated a writ of error to the circuit court would be sought, among which are the two following grounds:

'1. That the Court erred in permitting the prosecuting attorney to inquire of the defendant, Malcolm Cameron Bragg, whether or not the said Malcolm Cameron Bragg had a license to carry the death weapon, a pistol, and required the said Bragg to answer said question over the objections of the defendant's counsel, and which said answer by the defendant was that he did not have a license to carry said pistol;

'2. The Court erred in refusing the defendnat's motion for a new trial when the prosecuting attorney inquired of Malcolm Cameron Bragg whether or not he had a license to carry the pistol and Bragg answered that he did not have a license to carry a pistol, when the said question by the prosecuting attorney had been objected to by defendant's counsel;'.

The defendant, who is twenty-three years old, was born on Paint Creek in Kanawha County, West Virginia, and spent most of his life in that...