State v. Charles Amos Long.

• Decision Date: 10 May 1921
• Docket Number: No. 4022.,4022.
• Citation: 88 W.Va. 669
• Parties: State v. Charles Amos Long.
• Court: West Virginia Supreme Court

88 W.Va. 669

State

v.Charles Amos Long.

No. 4022.

Supreme Court of Appeals of West Virginia.

Submitted April 5, 1921.

Decided May 10, 1921.

1. Criminal Law-Instructions to Acquit if Reasonable Doubt

Raised by Evidence Itself or Ingenuity of Counsel Erroneous.

An instruction in a trial for felony, which tells the jury that if a reasonable doubt of the guilt of the accused is raised in their minds by the evidence itself, or by the ingenuity of counsel, they should find the accused not guilty, is erroneous, and should be refused. (p. 675.)

2. Arrest-Police Officer May Arrest Without Warrant one Com-

mitting Breach of Peace in His Presence.

A police officer, within his jurisdiction, may lawfully arrest, without warrant, one who commits a breach of the peace in his presence or view. (p. 676).

3. Homicide-Instruction as to Right of Person Arrested Without

Warrant to Kill Policeman Erroneous.

Where a police officer, in attempting to arrest without warrant a person who is intoxicated, disorderly, loudly swearing and disturbing the peace, is shot and killed by that person who, to excuse his act, relies on the defense of accidental discharge of the revolver in his hand caused by muscular reflex action superinduced by a blow on his cheek bone from the policemen's mace, and not upon self defense or the unlawfulness of the attempted arrest, an instruction, which tells the jury that if they believe the attempted arrest was unlawful then the defendant was justified in repelling it with force and to kill the policeman if such was necessary to protect himself from death or great bodily harm, is not properly drawn and should be refused. (p. 677).

4. Criminal Law-Instructions Propounding Abstract Proposi-

tions of Law Improper, But Not Reversible Error, Unless Misleading.

Instructions propounding abstract propositions of law should not be given; but if given, and there be evidence to which they are applicable, the appellate court will not reverse for that cause, unless it is clear that the jury has been misled or confused thereby. (p. 679).

5. Same-Instructions for Prosecution Need Not Embody Theory

of Defense if Given in Defendant's Instructions; Instructions Must be Considered as a Whole.

If the law applicable to and governing the theory of the defense is fully and fairly propounded in the instructions given for the defense, it is not necessary that those given for the prosecution should contain propositions of law relied upon by the defense, or that there should be incorporated therein the theory of the defense. Instructions must be considered together as a whole; an instruction based on one theory, unless binding, does not ignore another theory on which other instructions are given. (p. 680).

6. Same-If Context Shows That Word Mistakenly Used Was

Not Misleading it is Not Prejudicial.

Instructions must be considered in the light of the evidence; and if the context of an instruction and the evidence clearly show that one word therein was used for another, and that the jury could not have been misled by a mistake so clear and palpable, the error will not be considered as prejudicial. (p. 681).

7. Breach of the Peace-"Breach of Peace" Defined.

A "breach of the peace" includes all violations of the public peace, order or decorum, such as to make an affray; threaten to beat, wound or kill another, or commit violence against the person or property; contend with angry words to the disturbance of the peace; appear in a state of gross intoxication in a public place; recklessly flourish a loaded pistol in a public place while intoxicated; and the like. (p. 682).

8. Case Approved.

Fourth point of the syllabus in State v. Weisengoff, 85 W. Va. 271, is approved and applied, (p. 684).

9. Criminal Law.-Instruction as to extent to which Jury are

Judges of Evidence Held Erroneous.

An instruction which tells the jury that they are the sole judges of the evidence, and of the weight to be given thereto, and that they may believe or refuse to believe the testimony of any witness or any part of his evidence, is erroneous, prejudicial and reversible error. (p. 685).

10. Same-Order and Time of Introduction of Evidence in Discre-

tion of Trial Court.

The order and time in which evidence shall be introduced is largely in the discretion of the trial court and a verdict will rarely be reversed for that reason, unless clearly prejudicial. (p. 686).

11. Arrest-Knoivn Peace Officer Arresting Without Warrant Need

Not Disclose Authority Until Request Therefor.

In making an arrest without a warrant a known peace officer is not bound to disclose his character or authority, or give notice of his intention, until the party has submitted, or has demanded by what authority the arrest is made, as his known official character is sufficient in the first instance to require submission, unless a demand for disclosure of his authority is first made. (p. 688).

12. Criminal Law-Hypothetical Question as to Muscular Reflex

Action Causing Discharge of Pistol Need Not Give Remote Details.

Where a violent blow on the cheek bone is struck with a policemen's mace, and it is designed to prove by expert testimony that the blow would cause muscular reflex action sufficient to immediately cause the discharge of an automatic pistol then in the hand of the recipient of the blow, it is not necessary to incorporate in the hypothetical question, propounded to the expert witness, all the details of the evidence in the case, remote from the time when the blow was given; they could shed no light upon whether the blow given, as fully described and set out in the question propounded, would cause muscular reflex action. (p. 690).

13. Homicide-De Facto Officer Entitled to Same Protection as if

Title Undisputed in Prosecution for Murder of De Facto Officer Appointment and Qualification Need Not be Shown. A de facto officer while engaged in the execution of his duties is entitled to the same protection from assault, obstruction or interference, as if his title was undisputed. And in a prosecution for the murder of an officer de facto it is not necessary to prove that he was duly appointed or elected, or had duly qualified. (p. 686).

14. Same-Evidence of Friendly Relations Between Defendant

a.nd Victim Admissible to Rebut Element of Malice.

Evidence tending to show friendly relations existing be tween one charged with homicide and his victim is admissible to rebut the element of malice, and it is error to refuse to allow it to go to the jury. (p. 695).

15. Witnesses-Impeaching Evidence Inadmissible in Absence of Proper Foundation.

Evidence of a witness, called solely for the purpose of impeaching another witness by contradicting his testimony on some particular point, by showing he had on other occasions made conflicting statements, should be refused where no proper basis has been laid for the contradiction. (p. 691).

Error to Circuit Court, Wetzel County. Charles Amos Long was convicted of murder in the second degree, and he brings error.

Reversed and remanded.

T. M. McIntire, T. A. Brown, Wm. T. George and Blackburn W.are, for plaintiff in error.

E. T. England, Attorney General, Charles Ritchie, Assistant Attorney General, and G. W. Coffield, Prosecuting Attorney, for the State.

Lively, Judge:

Charles Amos Long was convicted of murder in the second degree in the Circuit Court of Wetzel County and sentenced to confinement in the penitentiary for a term of 12 years, and prosecutes this writ.

The defendant was a merchant and real estate dealer residing in the town of Pine Grove in Wetzel County and the evidence tended to show that in the late afternoon and evening of April 16, 1919, he became intoxicated and was recklessly operating his automobile over the streets of that town and was told that he must be arrested by Clem Long, a policeman of the town, for that offense. But while walking along the street, apparently in charge of the policeman, he drew his revolver and presented it at the policeman with the statement that he would not be arrested, accompanying the act with words indicative of an intention of inflicting upon the policeman serious bodily harm. The arrest was thus successfully resisted and the policeman afterwards went to the mayor's office and reported that the defendant had "bluffed" him, but did not ask for nor secure a warrant with which to apprehend him. The mayor advised the policeman not to attempt to arrest the defendant while intoxicated but to wait until he was sober. A short time afterwards, and about an hour or three quarters before the fatal shooting, the defendant again began speeding his car and acting generally in such a boisterous and reckless way as to attract the attention of a considerable crowd of the citizens who gathered together evidently to observe his acts. He went into a store on the main street of the town, where a shoe drummer was exhibiting to the merchant a line of sample shoes and threw one or more of the shoes and some other articles of merchandise out of the store onto the sidewalk, one of the shoes striking a pedestrian. He then came out of the store and offered an apology to the person hit by the shoe, which apology not being accepted very readily, he became incensed and wanted to have a fight with the supposed offender. At another store he became dissatisfied with some cigars which he had purchased from the merchant and tore them up and threw them on the floor until he obtained one which was satisfactory, and then threw the money to pay for the same on the floor. At another time he approached the same policeman near defendant's store and began quarreling with him and again threatened to shoot him with the same revolver and called him a vile name in the presence of defendant's wife and various other persons. Shortly before the fatal shooting he got out of his car in front of his office, which was a short distance from his store, and attempted to unlock the office and enter, but being unable to find the proper key or possibly to fit it in the lock,...