State v. Clyde Beale, (No. 5954)

• Decision Date: 22 November 1927
• Docket Number: (No. 5954)
• Court: West Virginia Supreme Court
• Parties: State v. Clyde Beale

104 W.Va. 617

State

v.Clyde Beale

(No. 5954)

Supreme Court of Appeals of West Virginia.

Submitted November 8, 1927.

Decided November 22, 1927.

1. Criminal Law Application for Change of Venue in Criminal Cane is Directed to Trial Judge's Sound Discretion; Burden is on Prisoner to Show Good Cause for Change of Venue; Good Cause for Change of Venue Must be Shoivyi to Exist at Time of Application; on Application for Change of Venue, Facts and Circumstances Must be Shown Satisfying Court That Fair Trial Cannot be Had (Const, art. 3, § 14).

An application for change of venue in a criminal case is addressed to the sound discretion of the trial judge, and the burden is upon the prisoner to show good cause for the change. Such good cause must be shown to exist at the time the application is made. Facts and circumstances must be shown satisfying the court that a fair trial cannot be had. (p. 623).

(Criminal Law, 16 C. J. §§ 307, 308, 320, 324.)

2. Same Judgment on Application for Change of Venue Will Not be Reversed Except on Clear Showing of Abuse of Discretion.

It is an established rule in this jurisdiction that the judgment of the circuit court upon such application will not be reversed, unless it plainly appears that there has been a clear abuse of such discretion. (p. 625).

(Criminal Law, 16 C. J. § 306.)

3. Jury Prohibition Against Putting on Jury List Name of Person Serving as Petit Juror Within Two Years is Exemption to be Exercised by Juror or Court, and Not One in Favor of Prisoner (Code, c. 116, § 3, and c. 159, § 3). The provision of Sec. 3, Chapter 116, Code, to the effect that the jury commissioners shall not put the name of any person on the jury list "who shall have been drawn and actually served as a petit juror within a period of two years" is an exemption to be exercised by the juror or the court, and was not intended to create an additional exception to those included in Sec. 3, Chap. 159, Code, in favor of the prisoner, (p. 625).

(Juries, 35 C. J. § 198.)

4. Criminal Law Court's Placing Jury in Hands of Deputy Sheriff Sworn to Keep Them Together Without Communication Will Not be Reviewed Except on Showing from Record of Abuse of Power Denying Defendant Fair and Impartial Trial (Code, c. 159, § 6).

The action of the trial court in placing the jury in the hands of two deputy sheriffs, who were sworn to well and truly keep them together without communication, according to law, will not be reviewed by this Court, unless it affirmatively appears from the record that there was such abuse of its power as denied the defendant a fair and impartial trial, (p. 628).

(Criminal Law, 17 C. J. § 3576 [Anno].)

5. Same. Instructions Must be Considered as Whole; if One Instruction Fully Covering Principle of Law Applicable Has Been Given, Refiisal of Other Instructions to Same Effect Differently Expressed is Not Error. Instructions must be considered together as a whole, and if one instruction has been given fully covering a principle of law applicable to the case, it is not error to refuse other instructions to the same effect, although differently expressed. (p. 630).

(Criminal Law, 16 C. J. §§ 2493, 2506.)

6. Homicide In Case of Felonious Homicide, "Corpus Delicti" Consists of Death and Existence of Criminal Agency as Cause Thereof; in Prosecutions for Felonious Homicide, Death Must be Proved Either by Direct Testimony or by Presumptive Evidence of Strongest Kind; Existence of Criminal Agency as Cause of Death May be Established by Circumstantial Evidence or Presumptive Reasoning on Facts and Circumstances.

Under our decisions, the corpus delicti consists in cases of felonious homicide, of two fundamental facts: (1) the death; and (2) the existence of criminal agency as a cause thereof. The former must be proved either by direct testimony or by presumptive evidence of the strongest kind; but the latter may be established by circumstantial evidence or by presumptive reasoning upon the facts and circumstances of the case. (p. 631).

(Homicide, 30 C. J. §§ 529, 530, 531.)

7. Same Under Statute, Murder in Commission of, or Attempt to Commit, Rape is "First Degree Murder"; Evidence Held to Justify Instruction That if Deceased Died from Injury or Injuries by Defendant and Another or Either in Committing or Attempting to Commit Rape, Defendant Was Guilty of First Degree Murder (Code, c. 144, §1).

Under our statute, murder in the commission of or attempt to commit rape is murder in the first degree. An instruction to the jury in this case to this effect and therefore that if they believed from all the evidence in the case beyond a reasonable doubt that the deceased came to her death as a result of an injury or injuries inflicted upon her by the defendant, or by the defendant and another, or by either of them, while they were acting together and in concert in committing or attempting to commit the act of rape upon the person of the said deceased, then the defendant is guilty of murder in the first degree, was properly given under the evidence, (p. 630).

(Homicide, 30 C. J. § 549.)

8. Homicide Evidence Held to Support Conviction of First Degree Murder.

A case where a verdict of murder in the first degree will not be disturbed. (p. 633).

(Homicide, 30 C. J. § 559.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Hatcher, President, and Lively, Judge, dissenting.

Error to Circuit Court, Mingo County.

Clyde Beale was convicted of first degree murder, and he brings error.

Affirmed.

W. A. Daughcrty, James Damron and W. 8. Wysong, for plaintiff in error.

Howard B. Lee, Attorney General, and R. A. Blessing, Assistant Attorney General, for the State.

Woods, Judge:

Clyde Beale was tried in the circuit court of Mingo county for the murder of Rissie Perdue, and upon a verdict of murder in the first degree without recommendation, was sentenced to be hanged. From this judgment he brings error.

Beale, at the time a resident of Nicholas county, was visiting his half-brother, Levi Layne, at the latter's home at Vulcan, Mingo count, on the date of the homicide. Layne was conducting a store a short distance from his dwelling. Jesse Perdue lived a mile or more from the Layne store. On Sunday afternoon, Jesse Perdue and his wife, Rissie, the latter being twenty-four years of age, started out on a walk for the purpose of taking a few pictures. A heel came off of one of Mrs. Perdue's shoes, and the couple stopped in at Layne's store, sometime after four o'clock, for the purpose of purchasing a pair of slippers. Someone inquired concerning liquor, and Beale went out and returned with a bottle. All present drank. A storm kept the parties in the store for some time. After it had subsided the four above named proceeded to the Layne home, where Perdue and his wife were introduced to the member's of the Layne household. While Perdue was acquainted with Layne, all the parties, including Beale and Layne, were strangers to his wife. Mrs. Perdue complained of being "doped" all evening, and after arriving at the Layne home tried repeatedly to go home. Her husband was beastly drunk, and apparently did not know much about what took place during the visit. While Layne denied it, his wife, daughter and servant girl testified that shortly before dark he compelled them by reason of his violent and threatening conduct to flee from the home and take refuge in the barn for a while. And this fact finds support in the testimony of disinterested neighbors to the effect that Layne came out into the yard and discharged his revolver several times. Later we find Rissie Perdue out in the yard between the store and the Layne dwelling in company with the defendant, who is admittedly the last person who saw her alive. Her body was found on the bank of Tug River on the Tuesday morning following a distance of some three and one-half miles from the Layne homestead. A post mortem examination disclosed two blood clots, one on the temple and the other in the right mastoid region, and the further fact that the deceased had met her death before her body was placed in the river.

The State contends that Beale and Layne had intercourse with Rissie Perdue, and that she was either killed by Beale while resisting his assault, or that she was killed to cover up the evidence of such intercourse. And to this end they rely on the testimony of Minnie Layne, the wife of Levi Layne, Maudie Layne, a daughter, and Pricey Sloan, a servant, who seem to have been cowed into inaction regarding the welfare of Rissie Perdue by reason of the terror induced by the acts of Layne and defendant. Some thirty minutes after Minnie Layne had gone to bed, she saw Layne (in his night clothes), Beale and Mrs. Perdue pass the dining room window. All the women in the house testify to the fact that the two men had Mrs. Perdue down on the ground under the grape arbor. Levi Layne's wife, in explaning what was going on, says: "You have a pretty good idea what it is. He was with her she was lying down, he was down with her." And Pricey Sloan said Mrs. Layne called Layne an opprobious name. Layne's daughter, Maudie, says she saw the same thing, and that her father said, "Give me a little," three or four times; that Clyde Beale was holding his hands over deceased's mouth and throat at the time; and that her father was down on Mrs. Perdue. Pricey Sloan was also looking out of the window and saw all three down on the grass, Layne on top of the woman and Clyde Beale holding* his hand over deceased's face; that they were there for about twenty minutes. Layne came back to the house when Mrs. Layne called. Clyde Beale remained outside with Mrs. Perdue. In about half an hour Clyde Beale called to Layne to come quick that there was something wrong with the woman, that she was strangling or choking. Maudie Layne heard them down in the garden and heard a struggling noise, and heard Clyde Beale call her father to "come down here quick Levi", about three times, that the woman was dying, choking or something...