Syllabus by the Court.
1. It
is error for the trial court to give instructions prejudicial
to the accused, on the trial of a felony case, which are not
warranted by the evidence.
2.
While voluntary intoxication is no excuse for crime, yet
under the laws of this state, it cannot convert a mere
accident into a felony.
3. It
is the duty of the state to allege and prove criminal intent
and if from the whole evidence the jury have a reasonable
doubt as to whether such intent existed they should acquit
the prisoner.
4. The
defense of accidental killing is a denial of criminal intent,
and throws upon the state the burden of proving such intent
beyond a reasonable doubt, and the accused is not required to
sustain such defense by a preponderance of testimony.
Error
to circuit court, Ritchie county.
Frank
Cross was convicted of murder and brings error. Reversed.
DENT, J.
At the
October term, 1895, of the circuit court of Ritchie county
Frank Cross was found guilty of murder in the first degree,
and sentenced to the penitentiary for life. From this
judgment he obtained a writ of error.
The
facts shown in evidence are as follows, to wit: On the 5th
day of September, 1895, the accused went to the house of his
sister, Ella Taylor, near Cornwallis, in Ritchie county,
where his wife had preceded him. He was partly intoxicated,
from drinking alcohol, and had on his person a self-cocking
revolver he had obtained that day from one George Garrison
for the ostensible purpose of preventing a disturbance at his
house, where he proposed having a dance that night. When he
entered the home of his sister, he spoke to her, and began
playing with one of her children, named Edna. His wife began
plaguing him about carrying a revolver. He pulled it out,
pointed it at her, and told her that if she did not shut up
he would shoot her. His sister told him to put it up, or he
might hurt some of the children. This he
started to do, and, while putting the revolver in his pocket,
it was, in some manner, discharged; the ball striking the
sister, Mrs. Taylor, in the left breast, and immediately
killing her. The accused cried out. "I have killed my
poor sister!" picked up her body, and placed it on some
clothes lying on the floor in another room of the house. He
then ran out, and caught a young girl by the name of Delancy,
who was leaving the house, and told her not to tell; that he
was drunk, and did not go to kill her. He then went up to
Delancy's himself, and, after some communication with a
woman of the family, returned, hid the revolver under the
corner of the house, and started for his mother's house,
in Cairo. At a short distance he met the husband of deceased
coming towards the house, and with the exclamation of
"Oh, Cam!" passed him, going out of the road to
avoid him, and proceeded on his way. Arriving at his
mother's, he hardly got seated until his brother came in
and informed his mother what he had done. The officers came
immediately and arrested him. Although the state endeavored
to show it, there was apparently no ill feeling existing
between the accused and the deceased, but their relations
were entirely friendly, except that, on occasion, his sister
would remonstrate with him about his conduct, and he would
inform her that he would manage his house to suit himself.
There was no evidence of premeditated or intentional killing.
The only two witnesses who saw the accused just before the
discharge (being his wife and niece, a child of deceased) say
he was in the act of putting the revolver in his pocket when
it was discharged. In this state of the testimony the court,
at the instance of the prosecution, gave the following seven
instructions, to wit:
"Instructions
for State. No. 1. The jury are instructed that, if they
believe from the evidence that the defendant was
intoxicated at the time of the killing of Mrs. Taylor, he
might yet be capable of deliberation and premeditation; and
if the jury believe from all the evidence in the case that
the defendant willfully, maliciously, deliberately, and
premeditately killed Mrs. Taylor, they should find him
guilty of murder in the first degree, although he was
intoxicated at the time of the
killing." This instruction is without evidence to
sustain it, as there is no evidence to show, or tending to
show, that the "defendant willfully, maliciously,
deliberately, and premeditately killed Mrs. Taylor."
"No.
2. The jury are instructed that the defendant, Frank Cross,
could not voluntarily make himself so drunk as to become,
on that account, irresponsible for his conduct during such
drunkenness, and that he might have been perfectly
unconscious of what he did, and yet been responsible; and,
further, he might have been, at the time of the killing of
Mrs. Taylor, incapable of express malice, for the law
implies malice in such a case from the nature of the
weapon, used, the absence of provocation, and other
circumstances under which the killing was done." This
instruction is also bad, for the law does not imply malice
from the nature of the weapon used, unless it first appears
that the killing was willfully or intentionally done.
Malice is never implied in cases of mere accident, although
occasioned by a deadly weapon.
"No.
3. The jury is instructed that drunkenness is no excuse for
the commission of a crime." This instruction
wrongfully assumes
that a crime was committed, and that drunkenness is given
as an excuse or justification. While, as an abstract
principle of law, the instruction is correct, yet it has no
application to the present case. The drunkenness is not set
up as an excuse for a crime, but as a potent or
contributing cause of an accident. Unskillfulness is no
excuse for the commission of a crime, and yet it may be the
cause of accidental homicide. And the same may be said of
drunkenness. And the fact that a person may be drunk when
he accidentally causes the death of another does not
convert such accident into a crime. Under our law,
drunkenness is not a felony, but is a mere misdemeanor.
"No.
5. The jury are instructed that if they believe the
defendant Frank Cross had formed a willful, deliberate, and
premeditated design to kill Mrs. Taylor, and, in pursuance
of such design, voluntarily made himself drunk for the
purpose of nerving his animal courage for the
accomplishment of such design, and then met
Mrs. Taylor when he was so drunk as not then to be able to
deliberate on and premeditate the killing, and killed Mrs.
Taylor, it is murder in the first degree, and the jury
should so find." This instruction is not only wholly
without evidence to justify it, but is given right in the
face of the evidence to the contrary.
"No.
6. The jury is instructed that a man is presumed to intend
that which he does, or which is the immediate or necessary
consequence of his act; and if the prisoner, Frank Cross,
with a deadly weapon in his possession, without any, or
upon very slight, provocation, killed Ella Taylor, he (the
prisoner) is prima facie guilty of willful, deliberate, and
premeditated killing, and the necessity rests upon him of
showing extenuating circumstances; and if the jury believe
from the evidence that he has not proven such extenuating
circumstances, or that such extenuating circumstances do
not appear from the case made by the state, they should
find him guilty of murder in the first degree." This
instruction is only proper in a case where the killing
appears to have been willfully and intentionally done.
"No.
7. The jury are instructed that if they believe from all
the evidence in the case that the defendant, Frank Cross,
was guilty of the use of a deadly weapon in the killing of
Mrs. Ella Taylor, the intent and the malice may both be
inferred from such act; and such malice need not have been
directed against her alone, but was such as showed a heart
regardless of social duty, and fatally bent on
mischief." This instruction was improper, in this
case, for the same reason that all the others were
improper, and for the further reason that there is no
evidence to show that the prisoner had a "heart
regardless of social duty, and fatally bent on
mischief." The only evidence even slightly tending in
this direction was that the accused sometimes indulged in
the use of intoxicating drinks, and this, in the present
state of the law and the rules of social duty, would not
sustain such instruction.
The
court also gave the two following instructions on its own
motion:
"Instruction
A. You are further instructed that if a person kills
another without provocation, and through
reckless wickedness of heart, but at the time of so doing
his condition, from intoxication, is such as to render him
incapable of doing a willful, deliberate, and premeditated
act, he is guilty of murder in the second degree. State v.
Robinson, 20 W.Va. 713." There is no evidence
justifying this instruction, as the positive evidence does
not even tend to show, but
...
