State v. Davis
| Decision Date | 30 June 1914 |
| Docket Number | (No. 2617.) |
| Citation | 82 S.E. 525,74 w.Va. 657 |
| Court | West Virginia Supreme Court |
| Parties | STATE. v. DAVIS. |
(Syllabus by the Court.)
Error to Circuit Court, Raleigh County.
William Davis was convicted of murder in the first degree, and brings error. Affirmed.
File & File and Dunn & Anderson, all of Beckley, and W. R. Thompson, of Huntington, for plaintiff in error.
A. A. Lilly, Atty. Gen., John B. Morrison and J. E. Brown, Asst. Attys. Gen., and J. W. Maxwell, of Beckley, for the State.
MILLER, P. [1] Indicted and convicted of murder in the first degree, the first error assigned by defendant is that the court permitted the State to prove by the witness Lilly the finding of an empty shell near defendant's home about fifteen hours after the homicide, and from which the load had been removed, evidenced by the ruffled edge of the shell, and which had never snapped or fired, the primer having also been left in the cap; and to also prove by him that unloaded shells with primer and cap can be bought, but which do not show ruffled or torn edges, as this one did; and also and in the same connection, and without the productionof the shell found and delivered by the witness to the sheriff or his deputy, to exhibit to the jury another shell, which the witness said was like the shell found on the defendant's premises.
The finding of the shell and its condition were evidently admitted as circumstances tending to connect defendant with the homicide and to account for the character of the leaden shot and steel balls found in the body of the deceased, the steel balls according to the evidence being such as are found in ball-bearing bicycles.
A witness Haley testified that the defendant about two months before the homicide had exhibited to him four shells, stating that they were loaded with steel balls taken from an old bicycle; that defendant had given him one of the balls, which he had carried for a while, and had then put it in his trunk where he had kept it until a week or so after the shooting; that in the same conversation defendant had told him that two of the shells were to kill Sid Reed, and the others to shoot the front glass out of Mont Mankins' store. It is objected that the shell found on the defendant's premises was not sufficiently connected with defendant with reference to the time, place and circumstance of the homicide so as to render it competent evidence, and moreover, that the shell which the witness Lilly exhibited was not the shell found, and therefore not the best evidence of the fact of finding it, or the condition when found, and that no reason being given for not producing the shell found and delivered to the sheriff, the use by the witness of the one in place of the other to illustrate his testimony was improper, and reversible error.
We think the finding of the shell and its condition when found being so nearly connected in time, place and circumstance with the homicide, and in connection with other evidence, tended in such an appreciable degree to connect the prisoner with the shell itself as to render the evidence admissible. Of course these facts were but circumstances, but they were very important facts in the chain of circumstances developed in the evidence, tending to connect the prisoner with the crime. Of course it is possible, as suggested, that the shell found had been placed on defendant's premises by some one else, but the jury would consider this possibility in connection with the other evidence.
In support of his contention that the prisoner was not sufficiently connected with the shell, and because of the lapse of time intervening, his counsel rely on McBride v. Com., 95 Va. 818, 824, 30 S. E. 454. In that case it was decided that the fact of the finding of a piece of rope on the premises of one jointly indicted with the defendant was not competent to support the theory of the Commonwealth that it was used by the prisoner in carrying the body of the deceased to the place where it was found. As the court in that case observed, there was not the slightest evidence connecting the prisoner with this rope, nor any evidence showing or tending to show the use of a rope, nor did any of the facts proven show or tend to show that any rope had been used by any one to convey the body to the place where it was found concealed in the bushes, a long distance from the place where the rope was found. Here we have a case where the deceased was killed with leaden shot and steel balls of the same kind proven to have been in the possession of the prisoner but two weeks before the homicide, and which facts, taken in connection with evidence of his threats to kill Reed with shots of the same character, constitute evidence strongly pointing to the guilt of the accused. We think there can be no doubt in the world of the admissibility of this evidence.
The other point made against this evidence is that the shell used by the witness to illustrate his testimony was not the best evidence. The, rule relating to best and secondary evidence, applicable in the case of contracts in writing or other written instruments, is not generally applicable on a trial for homicide, to instruments employed, or the condition of the clothes or other articles connected therewith. As a general rule such articles need not be produced in court, but may be described. Underwood v. Commonwealth, 119 Ky. 384, 84 S. W. 310; Jones on Evidence (2d Ed.) 244. The authorities relied upon by prisoner's counsel in support of his proposition, including State v. Lowry, 42 W. Va. 205, 208, 24 S. E. 561, are therefore inapplicable. They show that the rule invoked is applicable generally, if not exclusively, to instruments of writing. If the prisoner had desired to controvert the accuracy of the description of the shell found he could easily have summoned the sheriff, to whom it was delivered, and shown by him the fact of his possession and the condition of the shell.
The next point of error is that it was not proper to admit the evidence of the witness Haley as to the alleged threat of the prisoner to shoot the glass out of Mankins' store. Of course this threat was not in itself evidence of defendant's threat against Reed, or the deceased, but it was a part of the same conversation, and if a motion had been made to strike out the particular part relating to the shooting of the glass out of the store, no doubt it would have been stricken out. But we do not see that it was material or prejudicial. The jury would not have convicted the prisoner of the homicide because of this evidence of his threat against the property of another. If it could have had any effect it simply showed the evil mind and intent of the prisoner, in connection with the threat against Reed. We see no prejudicial error in the admission of this evidence. Wharton on Homicide, 935, and Wharton's Criminal Evidence (10th Ed.) section 910, donot support the contentions of defendant's counsel on this proposition.
The third point of error, urged in connection with defendant's motion for a new trial, is that counsel for the State, on cross-examination of the prisoner, propounded to him certain questions imputing other crimes committed by him, as to all of which questions it is conceded the court promptly sustained the objections of the prisoner's counsel, and the witness was not required to answer. We see no reversible error in this. No such case is here presented as in State v. Sheppard, 49 W. Va. 582, 598, 29 S. E. 676. In that case the court permitted answers to such questions and comments of counsel thereon. The prosecutor should not have asked these questions, but when the court properly ruled on them, all was done that could be done to correct the error. If trial courts could be required to set aside verdicts for such errors of counsel few cases would ever reach an ending.
The fourth point relates to the giving of State's instruction numbered 3. The criticisms of this instruction are, (a) that it assumes the fact and existence of malice in the heart of the prisoner at the time of the homicide, and that it was directed against the deceased;...
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