State v. Cook

• Citation: 117 S.E. 777,94 W.Va. 166
• Decision Date: 29 May 1923
• Docket Number: 4800.
• Parties: STATE v. COOK.
• Court: Supreme Court of West Virginia

117 S.E. 777

94 W.Va. 166

STATE v. COOK.

No. 4800.

Supreme Court of Appeals of West Virginia.

May 29, 1923

Submitted May 22, 1923

Syllabus by the Court.

Where in a trial for homicide, it is sought to prove threats made by deceased against the slayer, and the witness says he heard the deceased "talk some, but I cannot make a true statement of it; I could not recognize it enough to give a positive statement as to when it was and all about it," and he does not undertake to say when or what it was that the deceased said, it is not error to refuse an instruction based on the assumption that a threat against the person or life of the defendant had in fact been made by the deceased against him.

Where it appears there had been a quarrel of no serious character between defendant and deceased, and they had separated, the former retiring into a dwelling house near the public road and the latter pursuing his journey, but a short time thereafter the deceased and his son (the latter having heard of the quarrel) returned along the public road near the dwelling house, and defendant, knowing of their presence, and being armed with a pistol, left the dwelling against the advice and urging of those in the house, with the remark that "if they did not want to see a man killed they had better remain in the house," and proceeded to the public road, where after a short altercation defendant shot and killed the deceased, and in justification pleads self-defense, it is not error to instruct the jury that, if they believe there was a quarrel between the prisoner and deceased and that both were at fault, and a combat as a result of such quarrel took place, and that in such combat the prisoner inflicted upon the deceased a mortal wound, in order to excuse the killing on the ground of self-defense, two things must appear from the evidence or circumstances in the case: "First, that before the mortal wound was inflicted the prisoner declined further combat and retreated as far as he could with safety; and second, that he necessarily killed the deceased in order to preserve his own life, or to protect himself from great bodily harm."

It is not error to refuse instructions on "reasonable doubt," the substance of which has already been given in other instructions.

It is not error for the court, during a lull in the trial of a criminal case, to act upon an application of one of the jurors to carry a revolver, notice of which has been duly published according to the statute and fixed for hearing on that day; the granting of the license having no relevancy or connection whatever with the trial. And no inference of prejudice against the prisoner arises because one of the lawyers engaged in the prosecution appeared as counsel for the juror in his applicacation for the license.

Error to Circuit Court, Boone County.

Anthony Cook was convicted of murder in the second degree, and he brings error. Affirmed.

L. Fulton, of Madison, and B. J. Pettigrew, of Charleston, for plaintiff in error.

E. T. England, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

LIVELY J.

This writ is to review a sentence of 15 years' confinement in the penitentiary, based upon a verdict of murder in the second degree. The tragedy occurred about 4 o'clock Sunday afternoon on December 11, 1921, in the public road in front of the dwelling of Blaine Cook, a cousin of defendant. A short time before the fatal affray, defendant, Blaine Cook his cousin, and Emma, the wife of the latter, and a Miss Mooney, a daughter of Blaine Cook's wife, were at the dwelling, when deceased came by and engaged in a friendly conversation with Blaine Cook and defendant. It seems that some time prior some of the stock of deceased had been killed, and he suspected a Linville boy, who usually made his home with defendant, and said something relative to the Linville boy, which reflected upon defendant. A quarrel ensued, not of a serious character, and some boy leaving the place of the altercation informed those he met that trouble was in progress between defendant and deceased. This news reached Minsco Webb, a son of deceased, who was at his father's house about a quarter of a mile from Blaine Cook's, and he immediately and hurriedly went to the scene of the reported trouble, followed in a few minutes by his wife and Ruby Webb, the former bringing a pistol. Minsco came to Blaine Cook's house and saw no one there. The wordy difficulty had ceased. He was looking for his father, and discovered him some distance beyond at a bridge over Matts creek, and after talking with him a few moments returned toward Blaine Cook's house, followed by his father. At that time, defendant, Blaine Cook, and his wife and Muriel Mooney were in the house, and they had been apprised by some of the children that Minsco Webb had passed the house seemingly in a hurry. Defendant indicated an intention of going out, and the three persons with him insisted that he remain; Blaine Cook saying that one man did not have a chance against two. Defendant replied that, if they did not have the nerve to see a man die, they had better not come out. He was armed with a revolver, which he carried in a holster under his overalls. He went out to the road, where an altercation ensued between him and Minsco Webb; the deceased approaching at the time and remarking that they should have no difficulty over him, that he was able to take care of his own troubles. The fatal shooting speedily followed.

As usual, there is much conflict in the testimony as to the actions of the immediate actors. Minsco says that defendant drew his revolver from beneath his overalls and fired one shot at him, the powder from which burned his person, and immediately turned the pistol and fired two shots in quick succession at his father, who was about five or six steps away. He immediately grappled with defendant, and prevented further use of the pistol, throwing him to the ground in the effort to secure the weapon. His father, the deceased, then came up, and struck defendant with his fist in the face. Blaine Cook came and secured the revolver after much effort, and threw it beyond the reach of the combatants, where it was taken by Muriel Mooney, who extracted the cartridges therefrom, three of which had been fired, and hid it in the dirt somewhere above the house. Immediately after Blaine had secured the revolver, the deceased fell on his face in the mud, having remarked before that time that he was shot. In a short time thereafter he died. One bullet had entered under and back of his right arm. Defendant says that both Minsco and deceased advanced upon him in a threatening manner, Minsco with a revolver in his hand, and deceased with a rock in his hand, which he threw violently at defendant, striking him in the face and inflicting a wound from which the blood flowed; that just before or about the time he was hit he fired his revolver at deceased; the blow from the rock rendered him unconscious and he did not remember of having fired more than once, and when he came to his senses he was struggling with Minsco Webb on the ground. He says he fired the shot in defense of his life, and that he had reason to believe and did believe he was in danger of death or great bodily harm from the impending assault. Blaine Cook saw the affray, and in the main corroborates Minsco Webb. He says he saw nothing in the hand of deceased, nor any offensive weapon in the hand of Minsco; that, if there had been, he would have seen it; that when defendant began shooting he turned his head, and when he looked again Minsco had grappled with defendant and they went to the ground, and deceased came up and struck defendant with his fist while he was on the ground; that after some difficulty he succeeded in securing the revolver from defendant, and threw it to the Mooney girl, with instructions to take it out of reach; that immediately after he separated Minsco and defendant, Lewis Webb, the deceased, fell on his face, and soon afterwards expired.

There are other witnesses, who were not so near, who claim to have seen the difficulty, namely, Minsco's wife, Ruby Webb, his sister, both arriving on the scene while the scuffle was in progress on the ground, two of defendant's boys, who were near by, and a Mrs. McNeely. The testimony of these witnesses is in conflict, those testifying for the state corroborating in the main the evidence of Minsco and Blaine, and those for defendant corroborating his statements. Some of the witnesses for the defense say they saw Minsco's wife take off of his person a revolver while the scufflle was in progress on the ground, while she says the revolver which she brought with her was never out of her possession. Immediately after the combatants were separated, defendant went into the house, where, after washing his face, he remained a few moments, and, according to one of the women in the house, asked if Lewis Webb was yet dead, then went out the back way and disappeared in the nearby woods, claiming on the trial that he was afraid Minsco Webb would shoot him.

The conflict in the evidence as to which was the aggressor has been solved by the jury in favor of the state. The theory of self-defense has been repudiated by their verdict. They have come to the conclusion that the fatal shot was fired in the heat of blood, without justifiable provocation, and with malice. From the use of a deadly weapon malice could be inferred, and we find there was evidence of threats against the life of deceased which would justify the jury in raising the offense to murder in the second degree. It would serve no useful purpose to comment upon the conflict in the evidence regarding the affray. Two or three facts stand out with prominence. Defendant was urged not to leave the house...