State v. Dean

• Decision Date: 04 April 1950
• Docket Number: No. 10167,10167
• Citation: 58 S.E.2d 860,134 W.Va. 257
• Court: West Virginia Supreme Court
• Parties: STATE, v. DEAN.

Page 860

58 S.E.2d 860

134 W.Va. 257

STATE, v. DEAN.

No. 10167.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 17, 1950.

Decided April 4, 1950.

Syllabus by the Court

1. Where on a conviction of murder of the first degree the evidence shows that the decedent was killed by a deadly weapon and the evidence conflicts on the question whether the killing was premeditated and deliberate and there is substantial evidence from which the jury could infer that the killing was upon very slight provocation, it is not error to give the following instruction to the jury: 'The Court instructs the jury that a woman is presumed to intend that which she does, or which is the immediate or necessary consequence of her act, and in this case if you believe from the evidence beyond all reasonable doubt that the prisoner, Madeleine Dean, with a deadly weapon in her possession, without any, or upon very sight provocation, gave to the deceased, Mack Nixon, a mortal wound, then the prisoner is prima facie guilty of wilful, deliberate and premeditated killing, and the necessity rests upon her of showing extenuating circumstances, and unless she proves such extenuating circumstances or the circumstances appear from the case made by the State, then she is guilty of murder in the first degree.'

2. 'A motion to set aside a verdict and grant a new trial on the ground that a juror subject to challenge for cause was a member of the jury which returned it, must be supported by proof that the juror was disqualified, that movant was diligent in his efforts to ascertain the disqualification and that prejudice or injustice resulted from the fact that said juror participated in finding and returning the verdict. Such facts must be established by proof submitted to the court in support of the motion, and not from evidence adduced before the jury upon the trial.' Syl., Watkins v. Baltimore and Ohio Railroad Company et al., 130 W.Va. 268 .

3. Where on the conviction of murder of the first degree, without recommendation, of a young Negro woman, the veniremen were asked the question whether any of them were biased in favor of or against members of the Negro race, a juror on the voir dire answered in the negative, there was no duty, in the absence of other showing, on the part of defendant's counsel to challenge that juror on the ground of prejudice against the defendant, and where the joror, according to the testimony of three disinterested witnesses adduced by the defendant on a motion to set aside the verdict, on the ground of juror's alleged disqualification, was heard to say shortly after the trial that he voted that the defendant be hanged because she was a 'nigger' and, according to two of the witnesses, was heard to say, 'if I had my way I would kill them all [meaning members of the Negro race]; they all ought to be dead, these prisons are running over and they don't have any room for them, just kill them all', the case calling for capital punishment, the verdict should be set aside and a new trial granted on the ground that the juror in question was prejudiced and disqualified notwithstanding the juror's sworn denial that he made the statements attributed to him.

W. F. Damron, Logan, O. D. Damron, Logan, for plaintiff in error.

William C. Marland, Atty. Gen., Thomas J. Gillooly, Asst. Atty. Gen., for defendant in error

RILEY, Judge.

Matilene Dean was indicted in and tried before the Circuit Court of Logan County, and convicted of murder of the first degree without recommendation. To the judgment of the circuit court based upon a jury verdict, sentencing her to be hanged at the state penitentiary at Moundsville, defendant prosecutes this writ of error.

The defendant, a Negro woman twenty-three years of age, and a native of Logan County, residing at the village of Stowe, early on the morning of November 8, 1948, shot and killed Mack Nixon, commonly known as 'Shamrock', and sometimes referred to by that name in this opinion. Until about a year prior to the homicide she resided with her mother in the village of Shamrock in Logan County. Thereafter and until she was arrested she resided with and worked as housekeeper for one Sam Richardson, a widower, for $15 a week at the Richardson home in the village of Stowe, located on Buffalo Creek, approximately fifteen miles from the City of Logan.

On November 7, 1948, defendant left the village of Shamrock by bus late in the afternoon and arrived at Logan a short time later. Again boarding a bus at Logan about 7:30 on the same evening, she arrived at Stowe after dark about 8:55 that night. Upon alighting from the bus at or near the village of Stowe, she saw a man on the highway acting 'strangely', which prompted her to stop at the home of Richard Coleman, who lived a short distance from the Richardson home. She asked Coleman to turn on his light so she could see her way to the Richardson house. While talking with Coleman, the decedent, Nixon, approached her through the darkness and called 'Mateline', whereupon defendant identified herself and inquired if the person was 'Shamrock'. Nixon, who had a flashlight informed defendant that he was going to the Richardson house, and the two then proceeded there, where they found Richardson in his work clothes preparing to go to work. Decedent offered Richardson a drink of whiskey, which was declined. Then defendant in the presence of Nixon asked Richardson how much money he would draw the following Saturday, and took from her purse a statement which purported to show the money due, along with $18 in United States currency. When Richardson was ready to go to work, defendant and Nixon acccompanied him to a place called the 'grill' located near the highway between Stowe and the village of Lundale, where Richardson got on the bus for the purpose of going to his working place.

After Richardson got on the bus, defendant left decedent and began walking toward the village of Lundale, assigning in the record as her reason for not returning to the Richardson home with decedent that she was 'afraid to go back, he was acting so funny.' At Lundale she went to the home of Marie Redley (sometimes spelled 'Ridley' in the record), a friend. About five minutes later Shamrock followed her into the Redley house and 'started talking loud.' Defendant says when she asked decedent to be quiet, he began to 'curse and go on', and that she walked out of the house and left him there. Marie Redley, although summoned, did not appear to testify. Defendant then went to the nearby home of Tom Hall, and upon knocking she was admitted by Hall, who at the time of the trial was dead. As defendant walked into the Hall home, she was followed by decedent who was 'cursing and going on'. Defendant testified that when she asked Shamrock 'What do you mean cursing me, you make people think I am something to you', he 'slapped me and my nose bled.' Defendant says that decedent then called Hall a vile and insulting name and said, 'Do you want to take that up?' Hall then got a .22 caliber rifle from the closet. Defendant left the two during the argument which ensued, and 'didn't stop.' Proceeding to her home, she locked the doors, sat down and wrote two letters. Then examining to see that the doors were locked, especially the kitchen door, she went to bed and fell asleep.

Defendant testified that she next saw decedent in her bedroom, standing over her bed, holding a shot gun; and that when she asked, 'Sam, is that you?', decedent replied, 'Shut up, G_____ damn you, shut up, I will blow your G_____ damned brains out.' Defendant then said, 'If I have anything you want, just take it,' and got out of bed, opened her wardrobe, and, according to her testimony, found her pocketbook was missing. Defendant asked defendant for her pocketbook, and he said he did not have it. Then she accused decedent of breaking into her house, which he denied, saying 'your house was alreadyopen.' Defendant called over to Mrs. Leeper, her closest neighbor, who lived in a house thirty-five or forty feet away from the Richardson house, told her what had happened, and asked her and her husband, William Leeper, to come over as 'This man came over here and broke in my house'; but Mrs. Leeper's only response was, according to defendant, 'What man, can't you get him out?'. After a 'good argument' with decedent, defendant says she went over and knocked on the Leeper's door, but the Leepers refused to help her.

Thereafter defendant ran down to the Coleman house, and tried to get Coleman to take her to the state police, but was told he did not have enough gasoline. She then borrowed two nickels from Mrs. Coleman so that she could call the 'States', evidently meaning the state police. Next she proceeded to a neighboring house, occupied by a Mr. Myers. There she tried unsuccessfully to call the state police, but the telephone was out of order. Meanwhile the decedent was standing 'up there crusing'. Going to another nearby house, occupied by Pete Zanders, she told Zanders what had happened, but Zanders, having been informed by defendant that decedent had taken Richardson's shot gun, refused to go to the Richardson house, but drove defendant to Lundale to the residence of one William Mosley, a constable of Triadelphia District, Logan County, and asked the constable to arrest decedent. Mosley told defendant he would 'Be right on down.' Upon having been driven by Zanders to the vicinity of the Richardson home, defendant went to the Leeper home, stayed four or five minutes, and then went into the Richardson house, but found no one there.

Shortly thereafter defendant went again to the Coleman house, and told Mrs. Coleman that Richardson's money, gun and whiskey were missing. From the Coleman house, defendant proceeded in the direction of Lundale to the home of a Mrs. Moore. She gave Mrs. Moore the two nickels Mrs. Coleman had given her, and tried again to call the state policy from that place, but received no response. She...