State v. Craft

• Decision Date: 02 March 1948
• Docket Number: 9966.
• Citation: 47 S.E.2d 681,131 W.Va. 195
• Parties: STATE v. CRAFT.
• Court: West Virginia Supreme Court

47 S.E.2d 681

131 W.Va. 195

STATE v. CRAFT.

No. 9966.

Supreme Court of Appeals of West Virginia.

March 2, 1948

Rehearing Denied June 1, 1948.

Syllabus by the Court

1. A conviction for assault and battery will be sustained under an indictment for violating the provisions of Code, 61-2-9 because of the provisions of Code, 62-3-14.

2. An erroneous instruction dealing with a greater offense than that of which the accused stands convicted is harmless.

3. Upon the hearing of accused's motion for a mistrial on account of scandalous matter voluntarily testified by a witness for the State, but immediately and before the motion for a mistrial, stricken from the record by the trial judge it is not reversible error for the trial court to ask each member of the assembled jury whether the matter stricken from the record will affect his opinion of the guilt or innocence of the accused.

4. It is not error to decline an instruction that would tell the jury that if they believe from the evidence that a person other than the accused, naming a person not on trial performed the act for which the accused is being prosecuted their verdict should be for the defendant.

5. It is not error to refuse instructions the substance of which has been adequately covered by other instructions given on behalf of the same person who offered the instruction refused.

Herbert M. Blair, of Weston, and Wm. Bruce Hoff of Parkersburg, for plaintiff in error.

Ira J. Partlow, Atty. Gen., and J. Chandler Curd, Asst. Atty. Gen., for defendant in error.

KENNA Judge.

Thomas V. Craft was indicted in the Circuit Court of Lewis County for malicious assault in violation of the provisions of Code, 61-2-9, upon Andrew Holt on the ___ day of October, 1944, being accused and acquitted of malicious and unlawful assault but convicted of assault and battery, fined $100.00 and costs, and sentenced to thirty days in the Lewis County jail, this Court awarding a writ of error and supersedeas upon petition of the accused on the 19th day of June, 1947. Since one of the principal assignments of error rests upon the insufficiency of the State's evidence and quite a number of assignments turn upon evidential questions, it is necessary to go, in some detail, into the circumstances disclosed by this record.

On the night of October 26, 1944, at about ten o'clock, the accused, Thomas V. Craft, who was then a police officer of the City of Weston, accompanied by one Asa Posey, another officer, was cruising in the police department's patrol car on Main Avenue of that city. When they reached a point near the building occupied by the Weston Democrat they observed Andrew Holt, accompanied by one Clay Westfall, staggering on the sidewalk. Andrew Holt had been arrested and convicted several times for being intoxicated in a public place in the City of Weston over a period of years. Correctly concluding that Holt was drunk, they stopped in front of a taxi stand, got out, and arrested him.

The validity of the arrest was not questioned in the trial court and, consequently, is not being considered here. As a result of the head injury later received by Andrew Holt he stated that he had absolutely no memory of occurrences after he got into the police patrol car on the evening of October 26 until he recovered consciousness in the Weston Hospital the following afternoon.

The place of arrest was within about one hundred feet of the home of Andrew Holt's mother, where he lived, and according to the testimony of both Craft and Posey they saw no persons other than Holt and Clay Westfall when the arrest was made. Upon being told that he was under arrest and to get in the back seat of the police car, Holt hesitated but reluctantly complied, sitting on the left side of the back seat directly behind Craft, with Posey on his right. Craft drove. According to their testimony, Holt began cursing Craft when he got into the car. Craft drove the car through Democrat Alley to Water Street and as the automobile approached the intersection of Water and Second Streets Holt, continuing to curse, became violent, striking Craft on the back of the head with his fist and, with Posey attempting to interfere, Holt threw one arm around Craft's neck attempting to pull him over the front seat. Craft stopped the car. His night stick was on the seat beside him and in order to release his neck he took the mace in his right hand and struck Holt's arm. That seems to have concluded the violence in the automobile.

When the patrol car reached the city building Holt was taken by Craft and Posey to a room used as police headquarters and evidently for other purposes as well. As they were going through the door of the street entrance, Craft says that Holt called him an Irish son-of-a-bitch who had been wanting to club him for a long time and that then was when he would have to do so. Since the doorway of the corridor upon which the two cells of the city jail fronted was across the room of police headquarters from its street entrance, Craft says he merely gave Holt a 'light tap' on the back of the neck and shoved him forward. When the three reached the steps leading from the floor of police headquarters to the corridor upon which the cells fronted Posey appears to have been in the lead, followed by Holt. At any rate, at or near the bottom of the three steps Holt 'jerked loose' from Craft and Posey and swung viciously at Craft. Craft avoided the blow, warding it off with the same arm in the hand of which he carried his night stick, striking Holt a light blow on the shoulder. Asa Posey, deeming it necessary to subdue Holt, struck him on top of his head with his night stick powerfully enough to knock him to the floor, but not render him unconscious. Holt continued to resist the efforts of the officers after he was on the floor, attempting to kick them and resisting their efforts to stand him on his feet. Craft says that he struck Holt's legs several times with his mace in order to end his resistance. After they had gotten Holt into the first cell, where they remained with him for several minutes, they came back to police headquarters and someone mopped up a puddle of blood on the floor in the neighborhood of where Holt's head rested when he fell from Posey's blow.

In police headquarters when Holt was brought there were Desk Sergeant Lewis, Homer Golden, and W. E. Timms, the latter two being visitors and business men of the neighborhood. Their testimony in chief practically corroborates that of Craft and Posey. However, the State was permitted to show that Golden had testified before the grand jury stating in substance that both Craft and Posey had struck Holt with their maces on the head as they were entering the cell corridor, the blows being simultaneous. Golden and Timms both left police headquarters while Holt was being placed in the cell. The testimony of Craft, Posey, and Desk Sergeant Lewis is that after Holt was locked in the cell he continued to protest profanely, demanding release and rattling the bars of his cell for several minutes. Craft stated that he did not strike Holt a violent blow on the head with his mace. Posey testified that he struck only the one blow.

Matthew Holt, a witness for the State, who lived with his mother, testified that while downtown with his son between ten and eleven o'clock on the evening of October 26 he was informed that his brother Andrew was in the city jail, having been arrested and beaten to a pulp by a policeman. Having his small son with him, he went home. He first tried to reach his brother, Rush D. Holt, on the telephone. Being told that his brother had left his home, he went to the bathroom on the second floor to change clothes. While he was changing, his brother, Rush, came upstairs, told him of a telephone message concerning Andrew's arrest that he had received, and started with him to police headquarters. Upon arriving at police headquarters Matthew Holt did not go in, but left the car and went across the street to talk with one Bid Radcliff. Rush D. Holt went into headquarters and returned in a few moments informing Matthew that permission to see their brother was denied. They then went to the home of John Perkey, Mayor of Weston. After discussing the matter with Mayor Perkey, the Mayor called a Doctor Lawson whom he asked to go at once to the city jail to examine Andrew Holt and, if he found it necessary, take him to the hospital. He told Matthew and Rush D. Holt to inform the city jailer that they had his, the Mayor's, permission to see their brother. Under that arrangement they returned to police headquarters.

Rush D. Holt testified that he had received a telephone call at his home informing him that his brother Andrew had been arrested and beaten by Mr. Craft. The call was from a woman who spoke in an extremely excited tone and refused to give her name. He then went to his mother's home where he met his brother Matthew, followed by the occurrences already stated.

When Matthew and Rush D. Holt returned to the city jail and announced that the Mayor had given them permission to see their brother Andrew they were admitted to his cell by Posey. They state that they found their brother on the floor leaning against a bench used for a seat. He was sitting in a shallow pool of blood estimated to contain between one pint and one quart and covering an area approximately four feet in diameter. His head was bloody and bowed and he was altogether unconscious. They had been in the cell but a few minutes when Doctor Lawson arrived, superficially examined Andrew Holt and concluded that he must go at once to the hospital. Doctor Lawson states that he was in a dazed condition. He stood him on his feet and, with support and help, Andrew walked to the doctor's automobile and was taken to...