State v. Bruner, 10947

Decision Date07 October 1958
Docket NumberNo. 10947,10947
Citation105 S.E.2d 140,143 W.Va. 755
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Elmer David BRUNER.

Syllabus by the Court

1. The provision contained in the form for an indictment set out in Code, 62-9-1, indicating the day on which witnesses are sworn and sent before a grand jury, is directory. Only a substantial compliance therewith is necessary to the validity of the indictment.

2. On motion of a defendant in a criminal case for a change of venue, the burden rests on the defendant to establish good cause therefor.

3. In a prosecution for murder, based on a killing done in the commission of arson, rape, robbery or burglary, the State is not limited as to proof as to any one of such felonies, where the proof offered shows, or tends to show, the commission of other of such felonies.

4. 'While photographs may, as a general rule, be introduced in evidence to depict scenes material to some issue therein, whether a particular photograph, or groups of photographs, should be admitted in evidence, rests in the sound discretion of the trial court; and its rulings thereon will be upheld unless there is a clear showing that its discretion has been abused.' Point 4, Syllabus, State v. Wooldridge, 129 W.Va. 448 [40 S.E.2d 899].

5. The search of a locker at a public bus station is not an unlawful or unreasonable search prohibited by any constitutional provision.

6. 'It develves upon the trial court in the first instance, before admitting it, to determine from evidence whether a confession of guilt has been freely and voluntarily made, and not under duress or threats or by some inducement made or held out to the accused by someone in authority, of benefit or reward of a worldly or temporal character, or in mitigation of punishment; and the burden is upon the State to show to the satisfaction of the court facts justifying the admission of such confession.' Point 3, Syllabus, State v. Brady, 104 W.Va. 523 [140 S.E. 546].

Robert O. Ellis, Jr., Norman E. Rood, Huntington, for plaintiff in error.

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

GIVEN, Judge.

The defendant, Elmer David Bruner, was indicted by a grand jury of the Common Pleas Court of Cabell County at the June, 1957, Term, for the murder of Ruby Miller. The homicide occurred on the twenty-seventh day of May, 1957. A jury, on June 29, 1957, returned a verdict of 'guilty of murder in the first degree as charged in the within indictment', without recommendation. The court, on August 2, 1957, adjudged that defendant 'be put to death by electrocution', on September 27, 1957. A writ of error and supersedeas to that judgment was denied defendant by the Circuit Court of Cabell County on October 29, 1957.

John E. Miller, husband of Ruby Miller, on the morning of May 27, 1957, had breakfast with Mrs. Miller at their home in the City of Huntington. Later in the morning, Mrs. Miller, who sometime assisted her husband with his office work, driving an automobile owned by her husband, went to the office and remained there until sometime in the afternoon. On the return of Mr. Miller to the home, shortly after five o'clock in the afternoon, Mrs. Miller was discovered to be dead.

When found, the body was lying on its back on a bed, 'the head was bashed in and completely, and matted with blood, still wet on the scalp, mostly to the right side of the head'. There was a silk stocking wrapped tightly around her neck and 'There was cloth and adhesive over the eyes of the body'. Doctor S. Werthammer, a pathologist who was called to the Miller home by members of the Police Department of the City of Huntington a short time after discovery of the homicide, and who later performed an autopsy on the body, stated that the cause of her 'death was destruction of the brain * * * caused by a very hard instrument, which was short and fairly sharp. Sharp enough to produce a gaping wound, but not sharp enough--let's say like a knife or an axe'. Examination of substances found in the vaginal area of Mrs. Miller revealed the presence of live or 'intact' spermatozoa, which, in the opinion of the pathologist, were 'emitted shorter than twenty four hours' before the autopsy and subsequent to the death of Mrs. Miller.

A short time after the discovery of the homicide a member of the Police Department of the City of Huntington, a professional photographer, took a picture of Mrs. Miller, which was later developed by him and admitted in evidence as State's Exhibit No. 2. He testified to the effect that the picture correctly portrayed the 'scene as you saw it at the time' the picture was taken. Other witnesses testified to the effect that the picture correctly portrayed the scene as it existed very shortly after the discovery of the homicide. Defendant objected to the admission of the picture for the reason that it was 'of a prejudicial character' and was 'calculated to arouse sympathy and prejudice of the jury * * *'.

Defendant was arrested at about six o'clock on the evening of the homicide, and his person searched. At the time of his arrest there were taken from his person certain keys. After defendant had informed officers that one of the keys belonged to the automobile driven by Mrs. Miller and that he had parked the automobile in a certain parking lot in the City of Huntington, officers went to the lot, found the automobile parked there and that the key 'operated it and fitted it'. Another of the keys so taken from the person of defendant at the time of his arrest was a 'key to a locker at the Greyhound bus station' in the City of Huntington. The defendant informed the officers that the key was for the locker, that 'two suitcases' were in the locker and some 'personal clothing and said there was a gun in the suitcase'. When advised by the officers that they were sending someone to the locker for the purpose of obtaining the suitcases, no objection to that action was made by defendant. Neither did defendant express any objection to the proposed search of the locker or the suitcases. The suitcases were found in the locker bearing the same number as the number on the key, and contained a number of articles, mostly jewelry, taken from the home of Mr. and Mrs. Miller. A carton containing a 'used package of cigarettes and two unopened packages of cigarettes' was also found in one of the suitcases. The cigarettes found were of the same brand as partly burned cigarettes found in the home of Mr. and Mrs. Miller at about the time of the discovery of the homicide. Neither Mr. nor Mrs. Miller had smoked the partly burned cigarettes. No warrant authorizing any search or seizure was issued to or requested by the officers.

On the evening of May 27, the day of the homicide, sometime before midnight, after considerable, but not continuous, questioning, defendant admitted his guilt to the officers. A written statement was then prepared for the signature of defendant. However, he refused to sign the statement until about four-thirty P. M. of the following day. The statement, admitted as evidence, signed and sworn to by defendant, reads:

'May 28, 1957 12:05 A.M. My name is Ted T. Barr. I am a Detective on the Huntington Police Dept. This is Bernard Tomlinson, he is a Detective First Sergeant on the HuntingtonPolice Dept. Do you care to give us a statement at this time?

'I guess I am guilty of doing it. I went in the bathroom window and ransacked the home and was getting ready to leave getting ready to leave out the bedroom door I opened it there was a woman standing with a gun at me. I grabbed the gun and took it away from her she throwed up her hands and started screamin I picked up something and started hitting her with it I don't know how many times I hit her she backed over toward bed fell on the bed. I remember getting something and putting it over her eyes, you all said there was a stocking around her neck, after I got through hitting her I don't see no reason why I should put a stocking around her neck and I don't remember doing if I did and I know I didn't take her clothes off of her, I took the car and left and just drove around and parked it at St. Mary's. Started I reached home when they got me.

'Questions by Detective Sgt. Bernard Tomlinson and Detective Ted Barr. Answers by David Bruner.

'Question: David, what time did you enter the house where you hit the woman? Answer: About 11:00 A.M. I imagine I couldn't say for sure. Question: What day was this? Answer: Monday. Question: Do you know what month and year it was? Answer: Yes, May, 1957. Question: David, do you know where the house is located that you entered through the bathroom window? Answer: Over on Washington Boulevard. Question: Do you know anyone who lives at that house? Answer: No. Question: David is the same house where the lady discovered you and she had a gun in her hand and you grabbed the gun from her hand? Answer: Yes. Question: David is this house located in Huntington, Cabell County, State of West Virginia? Answer: Yes. Question: David, when you first entered the house in question, did you see or hear anyone in the house? Answer: There was no one there. Question: When did you discover that there was someone in the house? Answer: As I was getting ready to leave. Question: How did you discover it then? Answer: I opened the door and she was standing there with the gun in her hand. Question: David, had you ever seen this woman before? Answer: No. Question: David, how did you enter the house? Answer: I cut the screen with a knife, and unlocked it and raised the window. The window was unlocked. Question: David, when you saw the woman standing there with a gun, what was the first thing you did? Answer: Grabbed the gun. Question: Did you say anything to her? Answer: No. Question: Did she say anything to you? Answer: She throwed up her hands and started screamin. Question: David, do you know what...

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