State v. Clifford

• Court: Supreme Court of West Virginia
• Writing for the Court: POFFENBARGER
• Citation: 59 W.Va. 1,52 S.E. 981
• Decision Date: 13 February 1906
• Parties: STATE. v. CLIFFORD.

52 S.E. 981
59 W.Va. 1

STATE.
v.
CLIFFORD.

Supreme Court of Appeals of West Virginia.

Feb. 13, 1906.

1. Homicide—Evidence—Threats.

On the trial of an indictment for murder, evidence of threats, made by the deceased or hi? co-conspirator, previously communicated to the accused, is competent and proper for the purpose of shedding light upon the mental at titude of the prisoner toward the deceased at the time of the homicide, and of explaining the possession of the weapon with which the killing was effected, as tending to rebut any inference of malice which might be drawn from the fact of its possession on the occasion of its use.

[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Homicide, §§ 338, 399.]

2. Same.

When, in such case, there is evidence tending to establish a conspiracy on the part of the deceased and other persons to kill the accused, or do him grave bodily injury, and to show that the accused believed, and had reasonable ground to believe, that such conspiracy existed and the deceased was a party thereto, and the killing ensued immediately after an unprovoked assault upon, and severe beating of, the accused, by such other persons, the deceased standing by at the time, and there being evidence tending to show that he joined in the assault, evidence of threats made by such other persons and communicated to the accused before the assault, is admissible.

3. Criminal Law — Instructions—Setting Forth Forms of Verdict.

An instruction setting forth six forms of verdict, proper for findings on an indictment for murder, and telling the jury that under the indictment they can return any one of said verdicts, is defective in failing to direct the attention of the jury to the requirement that any verdict so returned must be based upon their belief from the evidence; but, if it appears from other instructions given at the same time that the attention of the jury was repeatedly directed to this requirement, the giving of such instruction is not error.

4. Homicide — Instructions — Intent — Deliberation.

It is not error to give, as an instruction to the jury in a criminal trial, the following legal proposition: "The court instructs the jury that to constitute a willful, deliberate, and premeditated killing, constituting murder of the first degree, it is not necessary that an intention to kill should exist for any particular length of time prior to the actual killing; it is only necessary that said intention should come into existence for the first time at the time of such killing, or any time previous."

[Ed: Note.—For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 14, 586.]

5. Same—Degrees of Offense.

On the trial of an indictment for murder, it is not error to give instructions presenting the theories of guilt of murder of the first and second degrees, and directing the attention of the jury to the presumption of guilt arising from certain facts, in case the jury should believe them to be established by the evidence, if there is any evidence tending in any appreciable degree to prove such offense.

[Ed. Note.—For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 642-646.]

6. Same—Manslaughter.

When the homicide, in respect to which the accused is on trial, immediately followed an unprovoked assault upon, and severe beating of, him, and the evidence tends to prove the offense of manslaughter, the court may properly give instructions based upon the theory of guilt of murder, if there is any evidence in the case tending to prove the commission of such crime. 7. Same—Defenses—Accident.

The defense of accidental and unintentional killing does not preclude the giving of instructions embodying the law relating to any offense charged in the indictment which the evidence tends to prove.

[Ed. Note.—For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 638-641.]

[52 S.E. 982]

8. Criminal Law — Instructions — Construction as a Whole.

To determine whether the trial court has erred in the giving of instructions, all the instructions must be read together, and, if being so read and interpreted, according to the plain common sense meaning of the terms used, they state the law correctly as applied to the evidence, and it appears that the jury could not have been thereby misled to the prejudice of the accused, the verdict will not be disturbed, because, they disclose a mere technical conflict in terms.

[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1990.]

9. Same—Appeal—Exclusion of Evidence.

Refusal of the court to permit a witness to answer a question which, by its own terms and subject-matter, taken in connection with facts and circumstances already in evidence, shows its relevancy and materiality, is not available as error on a motion for a new trial, if the expected answer of the witness was not disclosed to the court at the time of the ruling. An appellate court, in reviewing a judgment on writ of error, cannot assume in such case that an answer favorable to the exceptor would have been given. So much of the decision in Gunn v. Railroad Co., 14 S. E. 465, 36 W. Va. 165, 32 Am. St. Rep. 842, as conflicts with this principle is disapproved.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 2932.]

10. Homicide — Manslaughter — Evidence —Killing in Heat of Blood.

A sudden intentional killing with a deadly weapon, by one who is not in any way at fault, in immediate resentment of a gross provocation, is prima facie a killing in heat of blood, and therefore an offense of no higher degree than voluntary manslaughter.

[Ed. Note..—For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 59-64.]

11. Same—Evidence—Sufficiency.

When in such case the evidence discloses that no time intervened between the giving of the provocation and the act of killing, within which passion could have subsided and reason regained its dominion, and the fatal act itself was not attended by circumstances of extreme cruelty and inhumanity, nor preceded by conduct from which malice can be inferred, a conviction of murder in the second degree should be set aside and a new trial allowed.

[Ed. Note.—For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 59-64, 502, 522.]

12. Criminal Law—Motion for New Trial. A motion for a new trial, based on alleged

insufficiency of evidence, is an appeal from the jury to the court on a question of law.

13. Same — Passing on Motion—Functions of Court.

In passing on such a motion the court does not retry the case on the evidence nor disturb any findings made by the jury on evidence sufficient in law to sustain them. It simply determines whether, in law, the facts found, or which could have been found, constitute the right in action or the offense charged.

14. Homicide — Malice — Questions for Jury.

In homicide cases, the question of malice is for the jury, when there is sufficient evidence to sustain a finding of its existence. Whether there is any evidence of it is a question for the court in giving or refusing instructions. Whether there is sufficient evidence of it to sustain a verdict is for the court on a motion for a new trial.

[Ed. Note.—For cases in point, see vol. 26, Cent Dig. Homicide, §§ 562, 563.]

15. Same—Accidental Killing.

In cases where the blow intended for one person by accident falls upon and kills another, the thing done follows the nature of the thing intended to be done, and the guilt or innocence of the slayer depends upon the same considerations that would have governed had the blow killed the person against whom it was directed. Hence the homicide is murder, or manslaughter, or excusable homicide, for precisely the same reasons that would have determined its character had the event conformed to the intent; and the principle is the same whether the misadventure proceeded from the misdirection of the blow or from a mistake in the identity of the victim.

[Ed. Note.—For cases in point, see vol. 26, Cent. Dig. Homicide, § 84.]

Brannon, P., dissenting.

(Syllabus by the Court.)

Error to Circuit Court. Berkeley County. Paul Clifford was convicted of murder, and brings error. Reversed.

Faulkner, Walker & Woods, for plaintiff in error.

C. W. May, Atty. Gen., Frank Lively, and Allen B. Noll, for the State.

POFFENBARGER, J. Paul Clifford, under sentence by the circuit court of Berkeley county of imprisonment for the period of 10 years, upon conviction of the murder of Jacob Turner, has brought his case here on a writ of error.

The deceased came to his death by a shot from a pistol in the hands of the accused, but the circumstances of the killing were peculiar and unusual in some respects. Clifford was set upon and beaten in the nighttime by Charles and Joseph Cook, by way of punishment for an alleged insult to Jennie Cook, the wife of Joseph Cook, in the afternoon of the same day. No provocation was given by Clifford at the time of the assault Having been accosted by the Cooks and charged with the language imputed to him, he denied it and attempted in every way to avoid any trouble with them. At that time Jennie Oook was absent and the conversation continued until she came up and charged Clifford with having used the language in question, and thereupon Charles Cook struck him with his fist, and Joseph joined in the assault. At the time of the blow thus given, Clifford was standing with a pitcher of milk in his left hand, while his right hand held the pistol in the pocket of his pantaloons. There is evidence tending to show that the Cooks were aware of his possession of the pistol at that time, but, if they were not, they immediately discovered it and attempted to wrest it from him. In the struggle which ensued over the possession of the pistol, and during which the beating of Clifford continued, the pistol was discharged and the ball injured one of the fingers of Charles Cook. Soon afterwards a second discharge of it sent a ball through the thigh of Joseph Cook. While the struggle was in progress, J. R. Clifford, father of the accused, came upon...