State v. Butcher, 13963

• Decision Date: 23 September 1980
• Docket Number: No. 13963,13963
• Citation: 165 W.Va. 522,270 S.E.2d 156
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Lonnie Edward BUTCHER.

Page 156

270 S.E.2d 156

165 W.Va. 522

STATE of West Virginia v. Lonnie Edward BUTCHER.

No. 13963.

Supreme Court of Appeals of West Virginia.

Sept. 23, 1980.

Syllabus by the Court

1. In relation to the competency of a child to testify, the general rule in West Virginia is that (1) a child under the age of fourteen years is incompetent but such presumption is rebuttable; and, (2) a child fourteen years of age or over is presumed to be competent.

2. The competency of an infant to testify is determined as of the time that his testimony is offered in evidence.

3. "The question of the competency of a witness to testify is left largely to the discretion of the trial court and its judgment will not be disturbed unless shown to have been plainly abused resulting in manifest error." Point 8, Syllabus, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974).

4. "Although it is established in this jurisdiction that the giving of an erroneous instruction raises a presumption of prejudice, it is an equally well established rule that this Court will not reverse a criminal conviction because of an erroneous instruction where it clearly appears from the record that no prejudice has resulted." Point 2, Syllabus, State v. Mason, W.Va., 249 S.E.2d 793 (1978).

5. It is harmless constitutional error when burden-shifting instructions are given in a trial on a charge of murder if the verdict results in a conviction of less than murder.

Charles T. Bailey, Logan, for plaintiff-in-error.

Chauncey H. Browning, Jr., Atty. Gen., Richard L. Earles, Asst. Atty. Gen., Charleston, for defendant-in-error.

CAPLAN, Justice:

This is an appeal from a final order entered in the Circuit Court of Logan County on September 11, 1975, pursuant to a jury verdict finding the appellant guilty of voluntary manslaughter. The appellant was sentenced to confinement in the West Virginia Penitentiary for an indeterminate term of one to five years.

On December 14, 1974, the appellant, Lonnie Edward Butcher, had an altercation with the victim while on the appellant's property. Following the altercation, the appellant entered his home which was located nearby. Shortly thereafter he reappeared. The appellant took several steps and was apparently approached by the victim. At the trial upon the merits, there was conflicting testimony concerning the subject incident. The appellant's evidence indicates that the victim had a knife when the appellant appeared. The victim, with knife in hand, approached the appellant in a threatening manner. As the latter backed away, he warned the victim to drop the knife. Upon his failure to heed the warning, the appellant fired his pistol once, causing his death. On the other hand, the prosecution's case indicates that the victim was armed with a knife but that he dropped it before his encounter with the appellant. Before the appellant discharged his weapon, the victim held up his hand, asking not to be shot.

The appellant advances 19 assignments of error in his appeal. Those argued may be consolidated into the following four groups: (1) the competency of two witnesses to testify, one age seven and one age thirteen at the time of the trial; (2) the giving of an instruction presuming murder of the second degree where a deadly weapon is used in a homicide and thus presuming malice; (3) refusing of the Appellant's Instructions Nos. 6, 7, 11, 18, and 19; and, (4) the giving of State's Instructions Nos. 5, 6, and 6A on the ground that they were repetitious.

I

The first witness offered by the State was Elmo Vernon Miller, Jr., age thirteen at the time of the trial. To determine the competency of this witness, the court asked questions concerning his name, age, address, and grade in school. The witness also stated that while he did not go to church, he knew what it meant to swear and tell the truth, and that if he did not tell the truth, he would be sent to Prunytown. After the appellant objected, alleging that the witness was not properly qualified, the court questioned the witness more extensively in chambers. The witness responded that his grades were C's, D's, and F's; that he had never been a witness before; that he had been in court on a juvenile matter when he was six years old; that he intended to tell the truth; and that he did not know what God would do if he told a lie but he knew he could be sent to Prunytown. The court overruled the objection to the competency of this witness and permitted him to testify as to his account of the incident.

The State's second witness was John Maynard, age seven at the time of the trial and age six at the time of the event. The court extensively examined this witness in his chambers to determine his competency to testify. He testified that he was in the first grade at Monaville and that he made good grades; that he did not attend Sunday School or church but he believed in God; that he believed he would be sent to Shantytown if he testified falsely; and that he was afraid of the Judge but did not know what God would do if he told a lie. After noting that the witness was a borderline case, the court proceeded to question him concerning his observations the day of the altercation. The witness related that the victim asked the appellant not to shoot him. This testimony had not been given by the witnesses who preceded him. Also, in some instances, he testified differently from other prosecution witnesses. The appellant's counsel then questioned the witness about the incident and at the close of questioning voiced his objection to his competency. The court, after noting that the testimony of the witness was different from that of the older boy, determined that he was qualified on a "limited basis", the reason for the limitation being his age and so instructed the jury.

The early West Virginia rule was that a witness fourteen years or older was presumed to be competent; no such presumption existed if a witness was less than fourteen years of age. State v. Michael, 37 W.Va. 565, 16 S.E. 803 (1893). However, the rule of competency was modified in State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974), when the Court stated as a general rule that a presumption against competency arises for witnesses under the age of fourteen years. So, there now exists a rebuttal presumption that children under the age of fourteen years are incompetent to testify. The competency of an infant to testify is determined at the time his testimony is offered in evidence. Cross v. Commonwealth, 195 Va. 62, 77 S.E.2d 447 (1953). See generally, 81 Am.Jur.2d Witnesses, § 88; 97 C.J.S. Witnesses, § 58. Nevertheless, it is obvious that the capacity of the child at the time of the occurrence about which he is asked to testify enters into the consideration of his competence. A child who has sufficient intelligence to be competent as a witness concerning a recent event is incompetent as a witness concerning an event which occurred when he was so young that he does not have an accurate recollection of it. Hildreth v. Key, 341 S.W.2d 601 (Mo.App.1960). See generally, 81 Am.Jur.2d Witnesses, § 88; 97 C.J.S. Witnesses, § 58. The Court said in Wilson, supra (T)he intelligence, not the age, of a young child is the test of its competency as a witness; that is to say, to be considered competent, a child must be able to receive accurate impressions of the facts to which its testimony relates, and to relate truly the impressions received.

The child is not a competent witness if he is of such a young age and lacking in mental facilities as to be legally irresponsible for his conduct and has no idea or conception of the legal or moral obligation of an oath. It has been stated that " 'the effect of an oath on the conscience of a child should arise from religious feelings of a permanent nature, and not merely from instructions confined to the nature of an oath recently communicated to (him) for the purpose of the trial.' " State v. Michael, supra, 37 W.Va. at 570, 16 S.E. at 804. It is the court's duty to carefully question and examine the witness as to age, capacity and moral and legal accountability to determine his competency. The question of the competency is properly for the trial court to determine and will not be disturbed on appeal in the absence of a showing of an abuse of discretion. State v. Wilson, supra; State v. Farley, 125 W.Va. 266, 23 S.E.2d 616 (1942).

Applying...