State v.Crawford.
| Decision Date | 02 November 1909 |
| Citation | 66 W.Va. 114 |
| Parties | State v. Crawford. |
| Court | West Virginia Supreme Court |
1. Criminal Law Transcript Correction of Error or Omissions Certiorari.
Where necessary to correct errors, defects, or omissions in the original transcript or return filed in an appellate court, an additional or supplemental transcript or return may he ob tained on proper application, and, when filed in the appellate court, will be considered as part of the original transcript or return, and a writ of certiorari is proper for that purpose. (p. 117).
2. Homicide Instructions Self Defense Applicability.
On a trial for murder, instructions to the jury asserting defendant's right to stand his ground and not retreat, based on the theory of a deadly attack by deceased on, and on defendant in his dwelling, or castle, are inapplicable where the evidence shows defendant and deceased were at the time of the homicide jointly occupying the house where the killing occurred; the ordinary rules as to self defense, propounded in other instructions given at the request of defendant, alone being applicable. Miller, President, dissenting. (pp. 118-129).
3. Same Instructions.
On the trial of one indicted for murder, the evidence may be such as to justify an instruction on the theory of manslaughter, and also on the theory of self defense. These defenses are not necessarily inconsistent. (p. 124).
4. Same Manslaughter Provocation.
Words alone, however insulting or contemptuous, are never sufficient to reduce murder to manslaughter, at least where a deadly weapon is used; but, when accompanied by the acts of the deceased showing a purpose to commit personal violence on the accused, as by raising and pointing at him a gun, as if in the act of shooting, the accused is entitled to an instruction based on theory of manslaughter. (p. 125).
5. Same Instructions "Heat of Passion.''
An instruction on the theory that the killing, though intentional, was done in the heat of blood, or violent passion, and on adequate and sufficient provocation, reducing the offense from murder to manslaughter, is not bad because it omits the words "without malice," for "heat of passion" necessarily includes "without previous malice." (p. 127).
6. Same Instructions.
A proposed instruction to the jury, telling them that where one kills another, though intentionally, but in passion, in the heat of blood, upon sudden provocation, by gross indignity, or by threat of personal violence, was rightly rejected. By the use of the disjunctive "or," the instruction would have justified the murder if only the deceased threatened the defendant with personal violence. (p. 128).
Miller, President, dissenting in part.
Error to Circuit Court, Kanawha County.
William Crawford was convicted of murder in the first degree, and he brings error.
Affirmed.
M. M. Robertson and D. W. Taylor, for plaintiff in error.
William G. Conley, Attorney General, for the State.
Miller, President:
The indictment charged defendant with the murder of A. Murphy on the day of September, 1907. The jury found him guilty of murder in the first degree, as charged, and that he be punished by confinement in the penitentiary during his life. From the judgment of imprisonment on said verdict pronounced by the intermediate court of Kanawha county, and affirmed by the circuit court on appeal, defendant has brought error to this Court.
The original transcript of the record in the intermediate court, as certified to the circuit court, showed that the jury were "sworn to well and truly try and true deliverance make between the State of West Virginia and the prisoner at the bar, and a true verdict render according to the evidence in part," The circuit court, on suggestion and motion by the prosecuting attorney, awarded a writ of certiorari, directed to the clerk of the intermediate court, returnable forthwith, requiring him to certify the record more fully to the circuit court, and at the same time produce the record book of said court, containing the true order, showing the oath actually administered to the jury. This action of the circuit court was objected and excepted to, and it is the first point of error relied on.
The record shows that the case was heard on appeal in the circuit court on the original transcript of the record, and a true copy of the order of November 13, 1907, returned by the clerk in response to said writ of certiorari, and the original record book containing said order produced for the inspection of the court; and the court finding as a fact that said order had not been correctly certified in said original transcript, but was correctly certified in the copy thereof certified and filed by the clerk with his return to said writ, ordered the said certified copy filed and made part of the record; and, finding no other error therein, affirmed the judgment below.
The true and correct order of November 13, 1907, shows the omission therefrom, in the original transcript, of the words, "and having heard the evidence," immediately after the words "according to the evidence," and before the words, "in part were committed to the sheriff." But it is urged by counsel for the prisoner, with apparent confidence, that on bare suggestion, and without evidence in support thereof, it was error to the prejudice of the prisoner, justifying reversal, for the circuit court, by certiorari, to have brought up the true record of the oath of the jurors before giving judgment on the appeal. Section 12 of Article VIII of the Constitution, and section 3620, Code 1906, gives the "circuit court supervision and control of all proceedings before justices and other inferior tribunals, by mandamus, prohibition and certiorari" If statutory authority was necessary to justify the action of the circuit court, may it not be found here? But in Virginia, as early as Terrell v. Ladd, 2 Wash. 150, 151, certiorari was awarded to supplement the record filed on mere suggestion of counsel; and in this State, in State v. Tingler, 32 W. Va. 516, a felony case, the first point of the syllabus is: "On suggestion of diminution of the record a writ of certiorari is effectual to bring to this Court the true and correct record, no matter in what respect the transcript, as certified in the first instance, may vary from or misrepresent such record." For a discussion of the office of the writ of certiorari in appellate proceedings and for the authorities on the subject applicable to this case, see the opinion of the Court, by Judge Brannon, in the Tingler Case. In 3 Cyc. 105 it is said: "Where necessary to correct errors, defects, or omissions in the original transcript or return as filed in the appellate court, an additional or supplemental transcript or return may be obtained upon proper application, and, when filed in the appellate court, it will be considered as part of the original transcript or return, and the assignment of errors upon the original will be sufficient." Clearly the judgment of the circuit court on this point should be affirmed.
On the merits, numerous errors assigned in the petition are apparently, and, we think justifiably, abandoned in the arguments and briefs of counsel for the prisoner. We will, therefore, confine ourselves to the points of error relied on respecting the prisoner's instructions numbered six, seven, eight and nine refused. And first as to instructions six and seven. The court in other instructions given covered defendant's theory of self defense, including his right to stand his ground without retreating, and to kill his assailant, if necessary to protect his own life, but refused his instructions six and seven; the first covering his theory of an attack by deceased on his dwelling, and also upon him in his dwelling house or castle, the first covering both theories, but the latter covering only the theory of an attack upon him in his dwelling; and also refused his instructions eight and nine, covering another theory that the killing had been done in passion, in' the heat of blood, upon sudden provocation by gross indignity or threat of personal violence. The views I am about to express in respect to instructions six and seven are for the most part my personal views, for, while my associates agree with me that the court rightfully rejected instruction six, for the reason given by me, they are further of the opinion, for reasons to be given in a note, that it and number seven were rightfully rejected because inapplicable to the facts proven, and would have tended to mislead and confuse the jury; the rights of defendant on the subject of self defense being, in their opinion, fully covered by defendant's general instructions number ten and eleven given by the court.
Omitting the words "and endeavors by violence," in parenthesis, not in the instruction as proposed, instruction number six would have told the jury "that the dwelling house where a man lives is his home or castle, and that he may repel force by force in defense of his person, habitation, or property against one who manifestly intends (and endeavors by violence) to commit a known felony on either, and in such case he is not bound to retreat, but may pursue his adversary until he has secured himself from all danger, and if he kill his adversary in so doing it is justifiable self defense;" number seven, that if attacked in like manner "in his own house by a person armed with a dangerous weapon, and he has reason to believe and does believe, he is in danger of losing his life, or in danger of suffering great bodily harm at the hands of his assailant, he is not required to retreat, but may defend his life or person by taking the life of his assailant without retreating." Instruction number six, with the words in parenthesis, is identical with defendant's instruction number nine, approved in State v. Manns, 48 W. Va. 480, 486; and number seven is the same as defendant's number three given, and apparently approved, in State v. Hobbs, ...
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