State v. Collins

Decision Date23 February 1971
Docket NumberNo. 12854,12854
Citation180 S.E.2d 54,154 W.Va. 771
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Kester COLLINS.

Syllabus by the Court

1. When in a prosecution for murder the defendant relies upon self-defense to excuse the homicide and the evidence does not show or tend to show that the defendant was acting in self-defense when he shot and killed the deceased, the defendant will not be permitted to prove that the deceased was of dangerous, violent and quarrelsome character or reputation.

2. An instruction which does not correctly state the law is erroneous and should be refused.

3. It is reversible error to give an instruction which tends to mislead and confuse the jury.

4. Instructions must be based upon the evidence and an instruction which is not supported by evidence should not be given.

Slaven, Staker & Smith, Zane Grey Staker, Ronald J. Rumora, John M. Richardson, Williamson, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., George E. Lantz, Deputy Atty. Gen., Charleston, for defendant in error.


At the September term, 1968, of the Circuit Court of Mingo County, West Virginia, the defendant, Kester Collins, was indicted for the murder of Robert Evans and on October 1, 1968, upon his arraignment entered his plea of not guilty. Upon the trial of the case of the jury returned a verdict of guilty of voluntary manslaughter on October 4, 1968. The court overruled the motion of the defendant to set aside the verdict and grant him a new trial and by its final judgment rendered October 28, 1968 sentenced the defendant to confinement in the state penitentiary for a term of from one year to five years. To that judgment this Court granted this writ of error and supersedeas upon the petition of the defendant and on January 26, 1971 the case was submitted for decision upon the record and the printed briefs and the oral arguments of the attorneys in behalf of the respective parties.

On and prior to May 18, 1968, the defendant, Kester Collins, a married man forty-five years of age at the time of the trial and the father of two teen-age children, was the owner and operator of a beer tavern in a remote section of Mingo County near the village of Breeden. The building in which the tavern was located consisted of a large room with adjoining living quarters in which the defendant and his family made their home. The large room in which the trouble occurred which resulted in the death of Robert Evans and his brother Riley Evans during the night of May 18, 1968, was approximately 23 feet in length and approximately 17 feet in width. At one end of the room near the adjoining living quarters was a bar 11 feet in length and 2 feet and 3 inches in width, the top of which was 'chest high' above the floor. The room also contained a juke box, a pop machine, tables and several seats used in serving patrons and there was a window located some distance from the juke box.

Some time between eight and ten o'clock on the night of May 18, 1968, Robert Evans and Riley Evans, accompanied by their friend Tiny Spaulding, came into the tavern and ordered and drank a quantity of beer and mingled with about one-half dozen other persons who were in the tavern at that time. Robert Evans and Riley Evans had formerly lived in Mingo County but for several years had made their residence in Columbus, Ohio, and at intervals they returned to Mingo County for short visits. They had come to Mingo County to assist in the burial of a cousin who had been killed in a recent automobile accident. The exact age of the Evans brothers does not appear in the record, but they were younger than the defendant, who testified that he had known them during all their lives.

About forty-five minutes or an hour after the Evans brothers had arrived at the tavern, John L. Marcum, Jr., also known as Junior Marcum, a former law enforcement officer of Mingo County, accompanied by James Spry and three women, Loretta Workman, Florence Vance, and Laura Thompson, came into the tavern and Marcum ordered four beers and a soft drink for himself and his companions. At the time Marcum ordered the beer the defendant was at or behind the bar. Immediately before Marcum entered the tavern, Robert Evans went to the bar and told the defendant that he was 'going to whip' Marcum and that the defendant 'had better stay out of it'. While Marcum was at the bar and was about to receive the change from his purchase, Robert Evans, according to the testimony of Marcum, walked up to Marcum and asked him if he knew Robert Evans to which Marcum replied that he did and at that time Robert Evans knocked Marcum to the floor. Marcum grabbed Robert Evans by his waist and 'pulled myself up'. Robert Evans began to choke him and when Marcum tried to break the grip he was beaten about the head with a pop bottle and was temporarily rendered unconscious.

The defendant's version of the fight was that after Robert Evans had told him that he was going to whip Marcum and had asked Marcum if he wanted to fight and if he knew Robert Evans and after the defendant had told Robert Evans not to start any trouble if he could keep from it and not to bother 'nobody' and 'to stay out of it', Robert Evans struck Marcum in the eye and then 'got a choke hold around his neck' and they grappled and fell to the floor.

While the fight was in progress Riley Evans beat Marcum about the head with bottles that he apparently had taken from a nearby container. Marcum was severely beaten, was bleeding about the head, was rendered unconscious for a short time and finally, when the fight ended, crawled away from the place where the fight had occurred. Robert Evans who wore a white shirt but no coat was smaller than his brother Riley Evans who wore a blue shirt but also wore no coat.

The defendant testified that while the fight was in progress he unsuccessfully called upon the participants to stop the fight; that he tried 'to get a hold of them, with no success, and every time I would start in on them, why, Riley would draw back with a bottle like he was going to smack me with it, and I kept circling around and trying to get a hold of them, and nobody made no effort to help me break it up, and everybody hollowing 'Stop, stop, stop it, stop it ". He also testified that Robert Evans kicked him back into the nearby juke box and that at that time, fearing that if the fight were not immediately stopped the Evans brothers would kill Marcum, he ran to the living quarters in the rear of the tavern building, got a forty-five automatic pistol from under the mattress of his bed, returned to the tavern from the living quarters and fired a warning shot through the juke box and a second warning shot through the window.

After the second warning shot, Riley Evans, who was standing facing the defendant with a pop bottle in his raised hand, moved his other hand toward his pocket and took a step toward the defendant who was a short distance away and behind the bar which was between him and the Evans brothers, and Robert Evans, who was on the floor beating Marcum, turned from Marcum, got up from the floor, turned toward the defendant and put one hand toward his pocket. At that time the defendant fired five shots in rapid succession at the Evans brothers all of which struck them and caused their death. Robert Evans was killed almost instantly and Riley Evans died within a few minutes after he was shot. After firing the shots the defendant told the other persons in the tavern not to say or do anything and he held the pistol in his hand facing them for several minutes. Some time later, he took the pistol, reloaded it, and placed it is a refrigerator in the living quarters and told his son to call the police. The nearest officer who could be reached by telephone was located about two and one-half miles from the tavern. Several police officers began to arrive at the tavern about one o'clock on the morning of May 19, and they conducted or participated in an investigation of the tragedy.

When the shooting occurred, in addition to the defendant, the Evans brothers and Junior Marcum, at least eight other persons were present. They were: Florence Vance, Loretta Workman, Laura Thompson and James Spry, who had come to the tavern with Marcum; Tiny Spaulding, a cousin and companion of the Evans brothers and a brother-in-law of the defendant; Charles Clay, who before the shooting had played some tunes on a guitar; and Ott Baisden and Josephine Baisden, husband and wife, who were close friends of the defendant. Five eye witnesses, Vance, Workman, Spaulding, Clay and Thompson testified as witnesses in behalf of the State, and Marcum, the Baisdens, who were also eye witnesses, and some character witnesses testified in behalf of the defendant.

The Baisdens testified that the defendant came from behind the bar and tried to stop the fight between the Evans brothers and Marcum before he went for the pistol; but none of the five eye witnesses in behalf of the State testified that the defendant did anything to stop the fight before he fired the two warning shots and none of them gave any evidence of any threat or hostile act by Robert Evans or Riley Evans against the defendant. Vance, Workman, Spaulding and Clay each testified that the defendant refused to permit any of the persons present in the tavern to render any assistance to the Evans brothers before their death.

Though some testimony of the defendant and the testimony of other witnesses varies as to the number of shots, the evidence, including the testimony of the defendant, establishes clearly that the defendant, while the fight was in progress, fired two warning shots with a short interval between them, and that after another short interval and after the fight had ended, and Riley Evans had turned from Marcum and faced the defendant and Robert Evans had also turned from Marcum and rose to his feet also...

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