State v. Dodds.

• Decision Date: 05 December 1903
• Citation: 54 W.Va. 289
• Parties: State v. Dodds.
• Court: West Virginia Supreme Court

54 W.Va. 289

State

v.Dodds.

Supreme Court of Appeals of West Virginia.

Submitted September 5, 1903

Decided December 5, 1903.

1. Instructions.

It is the object and office of instructions to define for the jury, and to direct their attention to, the legal principles which apply to, and govern, the facts proved or presumed in the case. The instructions should simply develop the rules of law governing the particular facts, all the facts, not a part only, which the evidence tends to establish; and they are to be interpreted and judged of, not in any abstract way, but with reference to these facts,

2. Instructions.

The instructions given to the jury must be taken together; and it is not necessary to insert in each separate instruction, all the exceptions, limitations and conditions which are inserted in the instructions as a whole,

3. Instructions.

An instruction which singles out, and gives undue prominence to certain facts, ignoring other facts, proved, and of equal importance in a proper determination of the case, is improper,

Error to Circuit Court, Mercer County. Matt Dodds was convicted of murder and brings error.

Affirmed,

Hale & Pendleton and P. C. & B. McClaugheety, for plaintiff in error.

Attorney General and J. M. Anderson, for the State.

Miller, Judge:

At the January term, 1903, of the criminal court of Mercer County, Matt Dodds, the plaintiff in error, was indicted for the murder of one Lee Palmer. At the same term, he demurred to the indictment; and the demurrer was overruled. He then entered his plea of not guilty, upon which, issue was joined. The indictment is in the form prescribed by section 1 of chapter 144 of the Code; and is sufficient upon demurrer of motion to quash. State v. Douglas, 41 W. Va. 537. At the following April term, the defendant was tried, found guilty of murder in the second degree, and sentenced to be confined in the penitentiary for eight years. To this judgment and sentence the defendant was refused a writ of error by the circuit court of the county aforesaid. Defendant then applied for, and was, by this Court, allowed a writ of error. On the trial, certain instructions were given to the jury at the instance of the State, to which defendant objected; and certain other instructions were given at his instance, and others offered by him were refused, to which refusal he excepted. All of the rulings of the court, the instructions given, as well as those refused, and the evidence introduced by both the State and defendant, are certified in a bill of exceptions, and made part of the record.

Plaintiff in error insists that the verdict of the jury was and is contrary to the law and evidence, and should have been set aside; that the court erred in giving to the jury the instructions for the State, and in refusing to give instructions Nos. 4, 5 and 6 asked for by him.

The evidence proves that both defendant, Dodds, and the deceased, Lee rainier, were machinists, and, at the time of the homicide, were employed by the Norfolk & Western Railway Company in its round house in Bluefield, in said county; that on the 18th day of December, 1902, about 2:30 p. m., the defendant and one Mike Sullivan came to said round house together; that, at the time, Palmer was in the cab of an engine repairing it; that one J. R. Tillson was bis helper, and engaged in aiding rainier in making the repairs; that a helper is one who does the heavy work of a machinist, but is not himself a machinist; that when Dodds and Sullivan came up to where said engine was, Sullivan passed on and did not say anything; but Dodds stopped and asked Tillson what he was doing machinist work for, and Tillson replied that he was doing what Palmer had told him to do. Dodds then said, "Just wait and see what I will say to him;" and about that time Palmer came out of the cab from his work, Dodds then said to him: "What are you letting your helper do machinist work for?" Palmer replied that he was not letting his helper do machinist work, and Dodds replied, "The hell you ain't," or something to that effect. Dodds and Palmer then began to dispute, and Dodda struck Palmer; that several licks were then struck by the parties; and then Dodds struck Palmer on the head with his pistol. They then became separated about eight feet; that both of them appeared to be angry and excited; that Palmer then with clenched fist, and the appearance of being angry, came towards Dodds, and Dodds advanced toward Palmer; that when they got together, witness thought, Palmer rather fell up against Dodds, and that Dodds had his pistol in his hand, and put it up against Palmer's breast, and the pistol fired. Palmer fell to the ground and died in a few minutes and Dodds walked away. Witness says that when Dodds and Palmer were striking at each other, he saw Dodds take his pistol out of his overcoat pocket and strike Palmer once, on the head with it; that he saw nothing in Palmer's hands, during the fight, except what appeared to be a pipe. After the shooting, Palmer's tools were on the steam chest, where he had had them about his work. Another witness says that Palmer, during the fight, had nothing in his hands, except a pipe. It is also shown that the two men were about the same size.

The defendant testified that he was a member of the organization, known as the "Machinists' Union"; that he was a member of the committee of the organization, whose duty it was to see that the rules and regulations of the organization were not violated by any of its members; that on the day Palmer was killed, he was in the city of Bluefieid in Corvin's pool room, where he had gone to see some acquaintances; that while he was there Mike Sullivan asked him to go over to the machine shops and round house with him; that Sullivan stated that he wanted to see a man there by the name of Thomas, on business; that he went along simply at Sullivan's request; that he saw a man working on an engine, doing machinist work; that he asked him whether he was a machinist or a helper; that the person replied that he was a helper, and doing the work that Palmer had directed him to do; that Palmer came out of the cab of the engine about that time, when defendant asked him what he was letting his helper do his work for; that Palmer replied, "he is not doing my work, he is doing just what I told him to do." Defendant then said, "the hell he ain't;" and Palmer replied, "it is none of your damned business," and defendant said to Palmer that it was his business; that he was a member of the committee of "The Machinists Union," whose duty it was to see that a helper did not perform a machinist's work; that Palmer then went to his tool chest on the engine, and defendant thought he got a coal chisel, (which is a piece of iron a foot or a foot and a half long,) and that they then advanced toward each other. Defendant also testified that during the fight he received a wound on the back of his left hand and on the wrist of his left arm. He stated, among other things, that the night before the shooting he had stayed at a house of ill-fame in Bluefield; and that on the day of the occurence he had taken two or three drinks of whiskey. He also gave considerable other testimony, not of a very convincing character, the object of which, was to mitigate, and reduce the grade of, the offense charged.

The instructions given by the court, at the instance of the State, are in the words following:

"No. 1. The court instructs the jury that under the law a person is presumed to intend that which he does or which is the immediate and necessary consequences of his acts, and if the jury believe from the evidence in this case that the prisoner, Matt Dodds, with a deadly weapon without any or upon slight provocation, intentionally shot and killed Lee Palmer in Mercer county, then the prisoner under the law is presumed to be guilty of murder in the first degree.

"No. 2. The court instructs the jury that in considering all the evidence in this case they may consider the evidence of the prisoner and how far, if at all his interest in the case might bias his testimony, and to give his evidence and all other evidence in the case just such weight as they may think it entitled to.

No. 3. The court instructs the jury that in the indictment in this case there is charged murder of the first degree, murder of the second degree, voluntary manslaughter, involuntary manslaughter and assault and battery. Murder of the first degree is punished in this state by death or confinement in the penitentiary for life. Murder of the second degree is punished by confinement in the penitentiary not less than five nor more than eighteen years. Voluntary manslaughter is punished by confinement in the penitentiary not less than one nor more than five years. Involuntary manslaughter and assault and battery are misdemeanors and punished by confinement in jail or fine or both.

"No. 4. The court instructs the jury that a reasonable doubt such as is contemplated in law is not a mere fanciful or imaginary doubt, but is a fair and substantial doubt based on the evidence or lack of evidence in the case anil one for which a man who entertains such doubt should be able to give a good and substantial reason arising from the evidence or a lack of evidence in the case."

The court also gave to the jury, on request: of the defendant, the following instructions:

"No. 1. The court instructs the jury that they have no right to arbitrarily disbelieve the testimony of the prisoner, but that they should weigh and consider his testimony the same as any other witness in the case, giving to it such weight as they think it is entitled to.

"No. 2. The court instructs the jury that accidental killing is not such a matter of defense as throws upon the prisoner the burden of proving it by a preponderance of the evidence; that it is the duty of the state to allege and prove in this case that the prisoner killed Dee Palmer intentionally or willfully, and if the evidence in the case...