State v. Donahue.
| Decision Date | 14 November 1916 |
| Docket Number | No. 3201.,3201. |
| Citation | 79 W.Va. 260 |
| Parties | State v. Donahue. |
| Court | West Virginia Supreme Court |
The deposition of a witness taken before a coroner may be introduced in evidence on the trial of one accused of murder for the purpose of contradicting the witness on material facts testified to by him. (p. 262).
An instruction to the jury, based on a theory not warranted by the evidence, is erroneous. (p. 263).
8. Same Jury Question Instructions.
On the trial of one accused of murder, the jury are the judges of the degree of the crime, and an instruction which in the abstract undertakes to define that certain acts of the defendant shown in evidence rendered him prima facie guilty of murder in the second degree without at the same time submitting to the jury the facts and circumstances of the killing, characterizing the degree of the offense, is misleading and erroneous, (p. 263).
4. Homicide Duty to Retreat.
One without fault, assaulted by another in a public road, where he has the right to be, is not bound to retreat, but may lawfully stand upon his rights and repel the assault and if necessary to protect his own life or save himself from great bodily harm, may even take the life of his assailant. (p. 263).
5. Criminal Law Homicide Trial Instructions.
Instruction number 7, for the State, based on the theory of an assault by defendant without any, or upon very slight provocation, the proof showing great provocation, is bad; and is also bad for omitting to submit to the jury the facts and circumstances of the assault affecting the degree of the crime of which the accused may be found guilty. (p. 263).
6. Same Instructions Beasonable Doubt.
State's instructions nun oers 8 and 9, covering the subject of reasonable doubt, substantilly state the law of the case, according to State v. Kellison, 56 W. Va. 690, and State v. Abbott, 64 W. Va. 411, and are not bad upon any principle stated in State v. Taylor, 57 W. Va. 239. (p. 264)
7. Same Homicide Defense Instructions.
There being no evidenc that defendent voluntarily made himself drunk for the purpose of nerving his animal courage for the accomplishment of a desig to kill deceased, an instruction based on that theory, and also on the theory that the blow resulting in the death of decedent was without any or upon very slight provocation, not supported by the evidence, is bad, and should have been rejected. (p. 264).
8. Same TrialInstructions
Defendant's instruction number 2, which proposed to tell the jury that though they might believe the evidence established some probability in favor of th guilt of the defendant, rather than of his innocence, such evider e would not amount to proof of guilt however great the probabi ty, if constituting a correct legal proposition, was inapplicable to this case, where the fact of the killing was fully proven, and the guilt or innocence of the defendant depended upon the facts an circumstances attending the homicide. (p. 265).
9. Homicide Offenses Instnictions.
Defendant's instruction number 7, rejected, substantially covered by point 8 of the syl bus of State v. Cain, 20 W. Va. 680, should have been given. (p. 265).
10. Same Trial Instructions Deadly Weapon.
The defendant's instrution number 9, propounded a correct legal proposition, and should have been given to the jury, upon the principles stated in St te v. Gravely, 66 W. Va. 375. (p. 266).
Error to Circuit Court, ackson County. Merton Donahue was c nvicted of murder in the second degree, and he brings erro.
R 'versed, and, new trial awarded.
J. L. Wolfe and J. A. Saman, for plaintiff in error.
A. A. Lilly, Attorney G 3neral and John B. Morrison and J. E. Brown, Assistant At orneys General, for the State.
Indicted for the murder of James Reynolds defendant was found not guilty of murder in the first degree, but guilty of murder in the second degree, as charged in the indictment, and the judgment complained of was that he be imprisoned in the penitentiary of the state for the term of twelve years.
The first point of error is that the court below, proper ground being laid therefor, would not permit defendant to introduce in evidence to the jury the testimony of Everett Redman, taken before the coroner, for the purpose of contradicting him on material facts testified to by him on the trial before the jury. The record shows that the only witnesses to the killing were Redman, Redman's wife, who did not see the fatal blow struck, a woman by the name of Hughes, who had left the country and did not testify before the jury, and another witness present when the trouble began, but who left immediately and knew nothing of the killing. So the evidence of Redman was very important, and the character of the offense depended largely on the facts and circumstances of the killing detailed by him. According to his evidence before the coroner "Reynolds knocked Donahue down and clumb on top of him and commenced to pound him.'' On. the trial he denied that he had so testified. His evidence before the jury was that Reynolds "struck at him but didn't knock him down and grabbed him and threw him down and jumped on him and pounded him in the face." Before the coroner he swore: "When I took off Donahue, Donahue raised up and pulled out his knife and told him to hold on he did not want any fighting." On the trial he swore that he had not so testified before the coroner. Before the coroner he swore, referring to Donahue: "I saw him strike at him twice with the knife, I did not see him hit him." Before the jury he denied that he had so testified. His testimony on the trial was that he did see Donahue hit Reynolds with the knife.
And we find in Donahue's evidence before the coroner other matters tending to contradict other facts more or less important, testified to by him on the trial. Redman's testimony before the coroner was offered for the purpose of con-tradicting him, not as evidence of the guilt or innocence of the accused. For the purposes offered this evidence was legal and competent and should have been admitted. New York, etc. R. Co. v. Kellam, 83 Va. 851, 857, 3 S. E. 703; Wormeley v. The Commonwealth, 10 Grat. 658.
Complaint is next made of certain of the instructions given, over defendant's objection, at the instance of the state. Number four we think is bad. There is no evidence on which to base the theory of the instruction, that the defendant sought, brought on, or voluntarily entered into the difficulty with deceased. On the contrary all the evidence shows that defendant, though made drunk by whiskey furnished by deceased, and which he urged defendant to drink, endeavored to avoid the difficulty, and did not strike until after the deceased had knocked or pulled him down and had beaten him with his fists. There is no conflict in the evidence on this point.
Instruction number five told the jury that if they believed from the evidence that defendant unlawfully and intentionally stabbed Reynolds with a knife, though he may not have intended to kill him, yet he was prima facie guilty of murder in the second degree. This instruction abstractly considered may state a correct legal proposition, but the jury are the judges of the degree of the crime, under all the circumstances of the killing, and as the instruction omits to submit the question of the circumstances given in evidence to reduce the degree of the crime or justify the killing, we think it was misleading and should not have been given in the form submitted. State v. Morrison, 49 W. Va. 210, point 2 of the syllabus.
Instruction number six is based on the theory of a quarrel between defendant and deceased in which both were at fault, a fact not justified by the evidence. The evidence shows that defendant declined the combat and that it was brought on by deceased, in the public road, where defendant had the right to be. Defendant was not bound to retreat, as the instruction says, from the place where he was, and this instruction is bad for these reasons.
Instruction number seven told the jury that a mortal wound...
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