State v. Brant, 13961
| Court | Supreme Court of West Virginia |
| Writing for the Court | NEELY |
| Citation | 162 W.Va. 762,252 S.E.2d 901 |
| Parties | STATE of West Virginia v. William Howard BRANT. |
| Docket Number | No. 13961,13961 |
| Decision Date | 13 March 1979 |
Page 901
v.
William Howard BRANT.
Syllabus by the Court
1. "Malice is an indispensable element of murder in the second degree; and where, in a trial upon an indictment for murder, there is no evidence showing malice or from which it may be inferred, it is error to instruct the jury that it may find defendant guilty of murder in the second degree and a verdict of conviction based upon such an erroneous instruction will be set aside and a
Page 902
new trial awarded." Syl. pt. 1, State v. Ponce, 124 W.Va. 126, 19 S.E.2d 221 (1942).2. Malice may be inferred from the intentional use of a deadly weapon; however, where the State's own evidence demonstrates circumstances affirmatively showing an absence of malice which would make an inference of malice from the use of a deadly weapon alone improper, a conviction for second degree murder cannot be upheld.
Ballard & Brumfield and G. David Brumfield, Welch, for plaintiff in error.
[162 W.Va. 763] Chauncey H. Browning, Atty. Gen., Stephen L. Herndon, Asst. Atty. Gen., Charleston, for defendant in error.
NEELY, Justice:
The appellant, William Howard Brant, was convicted of second degree murder in the Circuit Court of McDowell County. The case before us presents a troublesome and extremely rare occurrence because the State, after proving that the accused killed another with a deadly weapon, was not entitled to have the jury instructed that they could return either a first or second degree murder conviction even though the defense offered no evidence of excuse or mitigation. We reverse and award a new trial.
This case is unique and, consequently, our holding is strictly limited to the facts which we shall develop in greater than usual detail. On the afternoon of 11 February 1976, appellant and David Harless, the decedent, began drinking substantial quantities of beer and whiskey with other young men at the Palace Cafe in Iaeger, West Virginia. The drinking continued until approximately 9:00 p. m. when appellant and Mr. Harless took a friend, Douglas Dawson, home. Mr. Dawson testified that he slept until 2:00 a. m. when his wife awakened him to drive a patron at her cafe home. After completing that mission, Mr. Dawson drove by the Iaeger Cafe where he saw appellant, David Harless and Dink Vanover. Apparently, after having taken Mr. Dawson, the witness, home earlier that evening, appellant and David Harless had continued their drinking at the Iaeger Cafe which seemingly, although the evidence is not clear, appellant had recently purchased in contemplation of a future business partnership with David Harless. Mr. Dawson joined them this second time in their drinking endeavors. He testified that the cafe was strewn with garbage, empty bottles and beer cans evidencing heavy consumption of alcoholic beverages, and that appellant and David Harless appeared to be extremely intoxicated. Mr. Vanover left shortly after 3:00 a. m. and when Mr. [162 W.Va. 764] Dawson prepared to leave at approximately 5:00 a. m., appellant walked behind the bar, pulled out a gun, said "Okay, David, we are not going to tear any more of this stuff up," and shot David Harless who turned slightly and said, "Willie, shoot again." Appellant fired another shot and David Harless slumped over the pool table dead. After realizing what had happened, appellant and Mr. Dawson drove to Dr. E. K. Whitley's home and convinced the doctor to come to the cafe. After being advised by Dr. Whitley to call the police and a lawyer, appellant left the cafe.
The relationship between appellant, William "Willie" Howard Brant, and the decedent, David Harless is crucial to our disposition of this case; the status of such relationship being gleaned from the testimony of the State's witnesses, Mr. Douglas Dawson and...
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State v. White, No. 11–1336.
...at 166–67, 163 S.E. at 873, and, evidence of ill will or a source of antagonism between the defendant and the decedent, State v. Brant, 162 W.Va. 762, 252 S.E.2d 901, 903 (1979). [744 S.E.2d 682]State v. Evans, 172 W.Va. 810, 813, 310 S.E.2d 877, 879 (1983). As for premeditation and deliber......
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State v. Horn, No. 12–0534.
...123 W.Va. 569, 17 S.E.2d 46 (1941); however, (malice) may be inferred from the intentional use of a deadly weapon, State v. Brant, [162 W.Va. 762] 252 S.E.2d 901 (1979).” State v. Ferguson, [165 W.Va. 529] 270 S.E.2d 166, 170 (1980)[, overruled on other grounds, State v. Kopa, 173 W.Va. 43,......
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Municipal Mut. Ins. Co. of West Virginia v. Mangus, No. 21763
...the insurance policy language, Mr. Mangus' act of shooting Mr. Fields was intentional. 2 In a similar vein, we held in State v. Brant, 162 W.Va. 762, 252 S.E.2d 901 (1979), that intoxication can only be used as a defense when it is shown that the intoxicated person had such a total lack of ......
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State v. Less, No. 14956
...Page 70 for his conduct during such drunkenness." Syl. pt. 5, State v. Robinson, 20 W.Va. 713 (1882). See also State v. Brant, 162 W.Va. 762, 252 S.E.2d 901 (1979); State v. Bailey, 159 W.Va. 762, 220 S.E.2d 432 (1975), overruled on other grounds, State ex rel. D. D. H. v. Dostert, 165 W.Va......
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State v. White, 11–1336.
...at 166–67, 163 S.E. at 873, and, evidence of ill will or a source of antagonism between the defendant and the decedent, State v. Brant, 162 W.Va. 762, 252 S.E.2d 901, 903 (1979). [744 S.E.2d 682]State v. Evans, 172 W.Va. 810, 813, 310 S.E.2d 877, 879 (1983). As for premeditation and deliber......
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State v. Horn, 12–0534.
...123 W.Va. 569, 17 S.E.2d 46 (1941); however, (malice) may be inferred from the intentional use of a deadly weapon, State v. Brant, [162 W.Va. 762] 252 S.E.2d 901 (1979).” State v. Ferguson, [165 W.Va. 529] 270 S.E.2d 166, 170 (1980)[, overruled on other grounds, State v. Kopa, 173 W.Va. 43,......
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Municipal Mut. Ins. Co. of West Virginia v. Mangus, 21763
...the insurance policy language, Mr. Mangus' act of shooting Mr. Fields was intentional. 2 In a similar vein, we held in State v. Brant, 162 W.Va. 762, 252 S.E.2d 901 (1979), that intoxication can only be used as a defense when it is shown that the intoxicated person had such a total lack of ......
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State v. Less, 14956
...Page 70 for his conduct during such drunkenness." Syl. pt. 5, State v. Robinson, 20 W.Va. 713 (1882). See also State v. Brant, 162 W.Va. 762, 252 S.E.2d 901 (1979); State v. Bailey, 159 W.Va. 762, 220 S.E.2d 432 (1975), overruled on other grounds, State ex rel. D. D. H. v. Dostert, 165 W.Va......