State v. Cecil Coleman

• Decision Date: 29 May 1924
• Court: West Virginia Supreme Court
• Parties: State v. Cecil Coleman

96 W.Va. 544

State

v.Cecil Coleman

Supreme Court of Appeals of West Virginia.

Submitted April 30, 1924.

Decided May 29, 1924.

1. Criminal Law Admission of Evidence That Accused at Time of Grime Serving Life Sentence for Similar Offense Held Prejudicial Error.

The admission of evidence upon a trial for murder that the defendant was at the time of the homicide serving a life sentence for murder in the State penitentiary is plainly prejudicial, and constitutes ground for reversal of the judgment of conviction, notwithstanding its subsequent withdrawal from the jury. (p. 546).

2. Homicide; Charge That Intent, Malice, and Premeditation Inferable from Crime Held Erroneous.

Where the evidence tends to show that the homicide was induced by the use of a vile and opprobrious epithet applied by deceased to accused at the time of the homicide, and evidence is also adduced raising the issue of defendant's mental irresponsibility, it is error to instruct the jury that if they believe beyond a reasonable doubt from the evidence that the prisoner was guilty of stabbing with a deadly weapon the deceased, and of killing him, the intent, the malice, and the willfulness and premeditation may be inferred from the act. (p. 548).

3. Criminal Law Evidence! of Physical and Mental Examination of Accused During Trial Held Not Violative of Defendant's Constitutional Privilege Not to be Witness Against Himself.

Where the defense of mental irresponsibility is raised, evidence of facts disclosed by a physical ar.d mental examination of accused by physicians either prior to or during the trial, with or without his consent, does not violate the constitutional privilege of accused not to be a witness against himself. (p. 549).

Error to Circuit Court, Marshall County. Cecil. Coleman was convicted of murder in the first degree, and he brings error.

Reversed and remanded.

C. E. Carrigan, J. Howard Holt and Atkinson, Shannon & Life, for plaintiff in error.

E. T. England, Attorney General, and R. Dennis Steed, Assistant Attorney General, for the State.

Lttz, Judge:

The defendant was indicted in the circuit court of Marshall county on May 7, 1923, charged with the murder of Orville Rowsey on April 22d of that year. He was arraigned on May 12th but, as the time of arraignment had not been fixed in advance, his counsel were not present. Thereupon the court appointed a local attorney, who stated that attorneys in Charleston had been retained to appear for defendant. The trial was then set for May 22d. On that day defendant's attorneys from Charleston appeared for the first time in the case, presented an affidavit showing that the attendance of important witnesses could not be secured at that time, and made a motion for continuance in order that defendant might be enabled to make proper defense. This motion was overruled, defendant was tried, convicted of murder in the first degree, and sentenced to be hanged on September 17, 1923. He prosecutes his writ of error to that judgment.

The homicide occurred on Sunday morning in the State penitentiary at Moundsville where defendant, twenty-three years of age, was confined under a life sentence for murder and deceased, Rowsey, was serving a five year sentence for burglary. The convicts were walking and exercising in the yard of the penitentiary. Four of them, Leonard Fisher, Goldie Adkins, Ralph Maxwell and the deceased Rowsey were standing together engaged in conversation when defendant came up to them and asked Fisher to hold a knife, stating that he had been shooting craps and was afraid the guards would search him. He turned the knife over to Fisher. Shortly thereafter an argument arose between Rowsey and Coleman in which Rowsey twice applied to Coleman the most vile and opprobrious epithet calculated to inflame the human passion, whereupon Coleman immediately grabbed the knife from Fisher's side pocket, cutting Fisher's fingers while doing so, and stabbed Rowsey twice, from the effects of which he died.

The defense offered evidence tending to show that defendant had been mentally deranged since childhood by reason of blows on the head from which fractures were alleged to have resulted. The theory of the defense was that the provocation caused by the insulting language of Rowsey to one of defendant's feeble mental caliber should be considered by the jury in determining whether there was malice, deliberation and premeditation.

Among the numerous errors assigned by counsel for defendant the following will be considered:

(1) That over the objection of defendant the State introduced by its first witness evidence that the defendant Coleman was confined in the State penitentiary for life under sentence from the intermediate court of Kanawha county for the murder of one, Isabel Craig, in October, 1921. Later, on the completion of evidence, the court instructed the jury:

"The court instructs the jury that the record of a

previous conviction! and commitment of the defendant are all stricken from the record and yon are not to consider the same as any evidence against the accused except in so far as it relates to the custody of the accused by the warden of the West Virginia penitentiary and. the place where the offense, if any, was committed."

It was proper for the State to show that the homicide took place within the State penitentiary, but it was absolutely unnecessary and unfair to the defendant to show that he was confined therein under a life sentence for murder. Although stricken out, this evidence was clearly prejudicial to defendant for the following two reasons:

(a) Defendant did not go upon the witness stand and his character was not in issue. The general rule is that on a prosecution for a particular crime evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it is a crime of the same sort, is illegal and inadmissible. 16 C. J. 586. "Proof of other homicides or crimes having no connection with the one for which the defendant is on trial is irrelevant and inadmissible. Until the defendant's character is put in issue it cannot be attacked." State v. Sheppard, 49 W. Va. 582, 89 S. E. 676; State v. Lame, 44 W. Va. 730, 29 S. E. 1020; State v. Donohoo, 22 W. Va. 761; Watts v. State, 5 W. Va. 532; Cole v. Commonwealth, 5 Gratt. (46 Va.) 696; Walker v. Commonwealth, 1 Leigh (32 Va.) 574; State v. Conway, (W. Va.) 120 S. E. 78.

(b) Testimony plainly erroneous and prejudicial to an accused on trial, although stricken from the consideration of the jury, may be of such character and so adversely affect the defendant as to constitute ground for reversal of the judgment, State v. Matsinger, (Mo.) 180 S. W. 856; State v. Martin, 229 Mo, 620, 129 S. W. 881.; Ann. Cas. 1912-A. 908; Bank v. Govs, 39 Neb. 437, 58 N. W. 84, 23 L. R. A. 190; Andrews v. State, 64 Tex. Crim. 2, 141 S. W. 220, 42 L. R, A. (N. S.) 747; Phillips v. Thomas, 70 Wash. 533, 127 P. 97, 42 L. R. A. (N. S.) 582; State v. Morris and Johnson, decided this term. In State v. Hill, 52 W. Va. 296, the court said:

"The general rule is...