State v. Charley Walker.

• Decision Date: 05 December 1922
• Citation: 92 W.Va. 499
• Parties: State v. Charley Walker.
• Court: West Virginia Supreme Court

92 W.Va. 499

State

v.Charley Walker.

Supreme Court of Appeals of West Virginia.

Submitted November 21, 1922.

Decided December 5, 1922.

1. Homicide Evidence of Specific Instances of Violence by Deceased Admissible With General Reputation, as Quarrelsome Man; Hearsay Evidence of Specific Acts of Violence by Deceased Inadmissible Unless Part of Res Gestae.

In the trial of a homicide where the accused relies upon self defense, and there is appreciable evidence to support his theory, the accused may prove the reputation of deceased as a dangerous and quarrelsome man, and if accused has personal knowledge of specific instances of unwarranted violence by deceased against other persons he may testify thereto, in addition to testifying to the general reputation of the deceased in that regard; but it is not error to refuse to permit him to testify of what he has heard, concerning such specific acts of violence, from others, unless such acts are so closely connected with the homicide as to be a part of the res gestae, (p. 503).

2 Criminal Law Cross-Examination Tending to Discredit Witness Other Than Accused Within Court's Discretion.

Whether a witness, other than the accused, in a criminal case must answer questions propounded on cross examination which tend to disgrace or degrade him for the purpose of affecting his credibility, but which are not material to the facts in issue, is within the sound discretion of the trial court, largely subject to the personal privilege of the witness if claimed, and if such witness, without claiming personal privilege, is required to answer such questions, it will not he error unless it is clear that the accused has been prejudiced thereby, (p. 506).

3. Homicide Where Reputation of Policeman as Dangerous Man is at Issue, Evidence of Reputation Where He Discharged Duty Also Admissible.

Where the reputation of a policeman as a dangerous and quarrelsome man is in issue, evidence thereof should not he confined to the locality in which he lives; evidence of those who know such reputation where he discharges his duty may be received, (p. 509).

4. Same Refusal of Instruction That Deceased Policeman Must be Considered as Private Citizen Because Act Leading to Homicide Not Discharged in Official Duty Not Error.

Where a policeman has been killed while patrolling his beat and in the discharge of his duties, it is not error to refuse instructions which tell the jury that they must consider the policeman as a private citizen in arriving at their verdict because the policeman an hour or so before the homicide and not in the discharge of his duty had commanded and required a girl to leave the street after 9 o'clock at night and go to her place of lodging, over which action of the policeman an altercation then arose between the slayer and the policeman and as a result of which the subsequent homicide was committed, (p. 510).

Error to Circuit Court, Kanawha County.

Charley Walker was convicted of murder in the second degree, and from an order denying his petition for writ of error to the circuit court, he brings error.

Affirmed.

S. B. Avis and T. C. Townsend, for plaintiff in error. E. T. England, Attorney General, B. Dennis Steed, Assistant Attorney General, and B. J. Pettigrew, for the State.

Lively, Judge:

Charley Walker was convicted of murder in the second degree in the intermediate court of Kanawha County, on February 16, 1921, and sentenced to confinement in the penitentiary for eighteen years. He petitioned the circuit court for a writ of error, which was refused, and he prosecutes this writ.

Defendant is a negro, and was indicted, tried and convicted for the murder of Flem Anderson, who was a negro policeman of the city. The accused relied upon self defense. At the time of the homicide defendant was operating a fruit store or soft drink stand on Court street, and in the early part of the evening of the 29th of August, 1920, a controversy of not a very serious character arose between the policeman and defendant over the presence there of a girl named Katherine Shelton, who had stepped into defendant's place of business. It was raining slightly at the time, and defendant had loaned the girl a raincoat as she started to go to her place of abode, a short distance away, and deceased, the policeman, took her by the arm as she came out of defendant's place of business and told her to go home, some of the witnesses stating that he told her she was under arrest, and led her across the street. Defendant protested with the policeman, and said that he would take the girl home, but the policeman told him to go back. Defendant then stated that he would go home with her and bring the coat back, but the policeman took it off her shoulders and threw it back at him and told him to go back, and there is some testimony of defendant's witnesses that the policeman at that time drew his revolver and ordered defendant to go no further. Defendant did go back to his place of business, and it is well established that at that time he procured a pistol which was behind the counter, he says in his money drawer, and made some effort to follow the policeman, making some remark to the effect that the matter should be then settled. This is denied by defendant, About 11 o'clock defendant and a companion, "Sunny" Peterson, left his place of business, going in the direction of No. 711 on Court Street, one of the places where he usually slept, and claims that he perceived the policeman standing on the same side of the street which he was traveling, at a police call box, and in order to avoid him crossed to the other side of the street, and thence up the side walk to the corner of Court and Pry streets. He says that the policeman came across the street from where he was standing when he first observed him, and arrived at the corner of Court and Fry streets about the same time that he and his companion came to that corner, when the policeman asked him what he had said about himself, the policeman, to Mathews, another policeman; whereupon, defendant replied that "I told him you had not treated me right", or words to that effect, when the policeman changed his mace from the right to the left hand, and attempted to draw a revolver from under his coat with his right hand; whereupon, he grabbed the right wrist of the policeman and a scuffle ensued, in which the pistol was discharged, and thinking his life was in danger he then drew his own revolver and killed the policeman, shooting him two or three times. He then took the policeman's pistol, and fled down an alley. The alarm was raised, and several persons pursued him. He presented his revolver to some of those who pursued, and ordered them to stand back. It was about three o'clock in the morning when he sent word to a policeman that he would give himself up. Evidently, defendant was alarmed at the threatening attitude of the crowd, which had assembled at the place of the shooting. This evidence of the defendant was in the main corroborated by "Sunny" Peterson.

On the other hand, the state introduced witnesses who testified in effect that the policeman was standing at the corner of Court and Pry streets near a post, when defendant and his companion approached him and shot him down. There was some evidence that defendant had made threats against the policeman after the first incident about the girl, Katherine Shelton, herein detailed. The jury evidently believed the witnesses for the prosecution, and found defendant guilty of murder in the second degree.

An outline of the testimony has been detailed in order to intelligently discuss the points of error which are relied upon for reversal.

The assignments of error are: (1) It was error to refuse to permit defendant's witnesses to testify concerning the shooting of a negro, by the policeman, some days before the homicide in question; it was error to refuse to allow the defendant to state if he had heard of any specific instances or any specific shooting that had been made, which would lead him, defendant, to think he (the policeman) was a dangerous and quarrelsome man; and to refuse to allow defendant to state that he had received information, a short time before the homicide, that the deceased had shot a colored man out there without any cause or excuse. (2) That it was error to permit witnesses for the defendant, over his objections, to answer questions concerning convictions of offenses which did not affect their truth and veracity, such as gambling, assault, unlawful cohabitation, and selling intoxicating liquors. (3) That the court should have permitted defendant to show that deceased bore the reputation of being a dangerous and quarrelsome man in the neighborhood in which he did police duty in the city, by witnesses who did not know his reputation in this respect in the neighborhood in which he lived. (4) That it was error to refuse to give defendant's instructions, Nos. 12, 13 and 14.

It is claimed in the first assignment of error, (a) that the lower court should have permitted witnesses for defendant to testify concerning the shooting of a negro man by the policeman a short time before the homicide on trial; (b) that the court erred in not permitting the accused to testify of specific instances of violence on the part of deceased, brought to defendant by information, and especially to testify as to the specific instance of deceased having shot a negro man in that vicinity, without any cause or excuse, also through information received. The only witness for the defendant who was asked concerning his knowledge of the shooting of a colored man, by the policeman, was the defendant himself; the other witnesses who were asked concerning this matter were character witnesses introduced by the state for the purpose of showing that the policeman bore a good reputation as a peaceable and quiet man in the neighborhood in which he lived, and on cross examination they were asked if they had not heard of this specific instance. These...