State v. Dillard

• Decision Date: 06 March 1906
• Citation: 53 S.E. 117,59 W.Va. 197
• Parties: STATE v. DILLARD.
• Court: West Virginia Supreme Court

53 S.E. 117

59 W.Va. 197

STATE v. DILLARD.

Supreme Court of Appeals of West Virginia.

March 6, 1906

Syllabus by the Court.

Upon a trial for murder, where the killing is admitted, and the defendant relies upon self-defense, the burden is upon him to establish such defense to the satisfaction of the jury.

Where upon a trial for murder, the evidence introduced by the state to establish the homicide tends to show extenuating circumstances, this does not relieve the defendant of the burden of establishing self-defense, if it is relied on, to the satisfaction of the jury; but the circumstances so shown are proper to be considered by the jury in arriving at their verdict.

Upon a trial for murder, it is not error to refuse to instruct the jury that, if they believe the prisoner, at the time of the killing, was so intoxicated as to be incapable of deliberation and premeditation, he should not be found guilty of murder in the first degree, where there is evidence tending to show that the defendant had previously designed the killing, and became voluntarily intoxicated for the purpose of committing the offense. The instruction should also present this theory to the jury.

Where the jury are instructed upon the law relating to a particular subject, it is not error to refuse to give other instructions to the same effect, as the court need not repeat instructions already substantially given.

It is peculiarly within the province of the jury to weigh the evidence upon the question of self-defense, and the verdict of a jury adverse to that defense will not be set aside unless it is manifestly against the weight of the evidence.

Error to Circuit Court, Mercer County.

Lewis Dillard was convicted of murder, and brings error. Affirmed.

A. M Sutton, for plaintiff in error.

C. W May, Atty. Gen., and Frank Lively, for the State.

SANDERS J.

This a writ of error to a judgment of the criminal court of Mercer county, convicting the defendant, and sentencing him to the penitentiary for the term of 10 years, for the murder of Bob Banner. The prisoner, upon his trial, asked the court to give to the jury 11 instructions, 4 of which were given; but the court refused to give instructions 5 to 11, which ruling of the court, in refusing said instructions, is assigned as error.

While the refusal of instruction No. 3 is assigned as error in the petition, still counsel for the defendant, in his brief, does not advance any reason in support of this assignment; in fact, it is not insisted that it was error to reject this instruction, and, inasmuch as it appears to have been properly refused, it will not be further referred to.

As instructions 6 and 8 present practically the same question, they will be dealt with collectively. The defendant admits the killing, and relies upon self-defense to excuse him, and these instructions present the theory that, if there is a reasonable doubt as to whether or not the killing was done in self-defense, the jury should acquit. It has always been the law in this state, which has been reiterated time and time again, that, where a homicide is proven and the prisoner relies upon self-defense, the burden is upon him to establish such defense by a preponderance of the evidence. There is no principle of criminal law better settled and more firmly intrenched than this, and to have given these instructions would have been a violation of this fundamental rule. But, in justice to counsel for the defendant, it is proper to say that in his brief he admits the stability of this doctrine, but claims that it is inapplicable here; that it only applies where the homicide has been proven, and where nothing else appears from the evidence of the state; and that it has no application where the state, in proving the homicide, presents facts which negative malice, and which go to show that the act was justifiable. We fail to appreciate the distinction undertaken to be drawn. The fact that the state, in proving the homicide, shows facts from which it may be concluded that there is no malice, or that the killing was justifiable, cannot alter the rule that, where self-defense is relied upon, it must be established by a preponderance of the evidence. But these facts introduced by the state in proving the corpus delicti, and which at the same time show, or tend to show, want of malice, or that the killing was in self-defense, are to be considered in determining whether or not the evidence does preponderate in favor of self-defense. When the homicide is shown or admitted, it is then for the jury to determine from all the facts whether or not self-defense has been shown, and it is immaterial whether the evidence relied upon to show such defense is disclosed by the witnesses for the state or those for the defendant; for the jury, at last, must say, from all the evidence, whether or not such defense has been established by a preponderance of the testimony. State v. Cottrill, 52 W.Va. 363, 43 S.E. 244; State v. Johnson, 49 W.Va. 684, 39 S.E. 665; State v. Hatfield, 48 W.Va. 561, 37 S.E. 626; State v. Staley, 45 W.Va. 792, 32 S.E. 198; State v. Jones, 20 W.Va. 764.

Instruction No. 7 tells the jury that the evidence that the defendant was reputed to be a peaceable and quiet citizen is not to be lightly disregarded by them, and that the production of such evidence will be sufficient upon which to base a reasonable doubt as to the guilt of the accused. One fault we find in this instruction is that it invades the province of the jury by telling them the weight which should be given to the evidence. They are told that the evidence is not to be lightly disregarded. As to how the evidence should be regarded, and what weight it should have, should be left entirely with the jury, to be by them taken and considered in connection with all the other facts and circumstances of the case. Then it assumes that the good character of the defendant has been shown, and states that the mere fact that one accused of crime produces evidence of good character may be sufficient evidence on which to base a reasonable doubt as to his guilt.

A court should not invade the province of the jury by telling them what weight should be given to the evidence. It is the duty of the jury to consider such evidence in connection with all the other evidence and circumstances of the case, and to give it just such bearing and weight as it should have. It is peculiarly within their province to determine its true weight and credibility. To have given this instruction would have been tantamount to telling the jury that the defendant had shown good character, and therefore it of itself is sufficient to create a reasonable doubt as to his guilt.

It is undertaken to be presented by instructions Nos. 9 and 10 that if the defendant, at the...