State v. Douglass.
| Decision Date | 07 December 1895 |
| Citation | 41 W.Va. 537 |
| Parties | State v. Douglass. |
| Court | West Virginia Supreme Court |
The form of indictment for murder, in section 1 of chapter 144 of the Code, again held good for conviction of murder in the first or second degree or any lower grade of homicide.
An affidavit for change of venue must state facts and circumstances from which the conclusion is deduced that a fair trial can not be had, and not merely opinion that it can not, and the court must be satisfied from those facts that he can not or may not get such fair trial, and not from conclusions or opinions of the defendant or his witnesses.
J. W. Arbuckle and W. P. Rucker for plaintiff in error. J. W. Arbuckle cited Minor, Crimes & Punishments, 253; 2 Gratt. 629; 3 Graft. 690; 5 Gratt, 664; 14 Gratt. 675; 18 Gratt. 785; 18 Gratt. 915; 19 Gratt. 807; 20 Gratt. 825; 25 Gratt, 974; 15 Gratt. 664; 77 Va. 53; 22 Am. Dec. 767; 10 Am. & Eng. Enc. Law, 544, note, 566-67, notes; 45 Ind. 338; 44 Tex. 473; 1 Tex. 417; 10 Mich. 212; Code, c. 144, s. 1; 4 Leigh, 669; 22 W. Va. 800; 1 Burr's Trial, 416; 4 Wend. 232; 9 Pick. 99; 2 Va. Cas. 375; 24 W. Va. 782; Const. Art. Ill, s. 5.
Attorney-General T. S. Riley for State, cited 26 W. Va. 116; 24 W. Va. 767, 814; 22 W. Va. 800; 33 W. Va. 319; 28 W. Va. 297; Code, c. 144, s. 1.
This is a writ of error brought by Kenos Douglass to reverse a sentence of imprisonment for life in the penitentiary imposed upon him by the Circuit Court of the county of Greenbrier for the murder of Thomas Reed on Christmas night, 1893.
Counsel for the prisoner asks us to hold bad the indictment, which is in the form allowed by section 1 of chapter 144 of the Code, the particular defect suggested being the omission to charge the homicide as having been done with premeditation, as one of the essential elements of murder in the first degree. As was said in Baker's Case, 33 W. Va. 330 (10 S. E. 639) we regard the indictment good under several decisions there mentioned, and will not reopen its discussion. It has been so long used and so often approved that the matter ought to have rest.
The refusal to allow a change of venue is relied on as error. The statute requires the accused to show good cause for it. This means that he must show it to the satisfaction of the court. State v. Greer, 22 W. Ya. 800. To maintain his motion numerous affidavits were filed all, I may say, alike in substance stating that the affiants had heard the case much talked about in the county, and that there was a strong prejudice against Douglass, and that, in the opinion of affiants, a fair and impartial trial could not be had in Greenbrier county. Are these affidavits, taken alone, without reference to the counter affidavits filed by the state, sufficient to show that the circuit court abused the discretion lodged with it? They show what? First. That the case was much talked about. This is only a basis of opinion that prejudice existed. Second. That there was prejudice, which could only be matter of opinion. Third. That in the opinion of affiants a fair trial could not be had. Now, this all amounts but to an expression of opinion that a fair trial could not be had. There may be public discussion of a case. There always is of murder cases. There may be prejudice generally is; but is it so prevalent and widespread that, in spite of the safeguards which the law throwrs around trials, it may there is serious danger that it may prevent a fair trial? No facts are given affording a basis of judgment as to whether such trial can be had. Opinions differ so widely. They spring, with different men, from so many different theories, conjectures, bias, partisanship, or solid ground. There must be facts and circumstances so that legal deductions can be made. In Wormsley's Case, 10 Gratt. 658, the evidence showred much more than here, and was held insufficient, and the rule stated that the prisoner's affidavit, alone, of a fear or belief that he could not get a fair trial was insufficient, and that there must be independent testimony to show facts making it appear probable, at least, that his fears and belief are well founded. 1 Bish. New Or. Proc. § 71, cl. 5, correctly states the rule: So long ago as 1817 the Virginia general court adopted a general rule that in future, in all motions to change the venue, the petition and affidavit "shall set forth the particular facts from which the petitioner is induecdto believe that be can not have a fair trial in the county." 2 Va. Cas. 88. In Territory v. Egan, 3 Dak. 119, (13 N. W. 568) it is held that the affidavits In Salm v. State, 89 Ala, 56 (8 South. 66) it is held that opinions of witnesses pro or con that a fair trial can or can not be had are worthless, unless supported by sufficient reasons, testified to as facts. The same rulings will be found in People v. Bodine. 7 Hill, 117; State v. Burris, 4 Har. (Del.) 582; People v. Yoakum, 53 Cal. 566. It is clear that the prisoner's showing did not entitle him to a change of venue. But affidavits were filed by the state denying the existence of a prejudice against Douglass to an extent at all militating against a fair trial, stating that the excitement incident to the murder had abated, as also the feeling against him, and that he could, in the opinion of affiants, have a fair and impartial trial, and that those who made the affidavits for the prisoner were residents of the immediate vicinity of the place of the homicide, and even there sentiment was divided, as the prisoner had partisans there, but that other sections of the large county of Greenbrier, composed of eight districts, were unaffected by prejudice. These affidavits conveyed the opinion of an ex-sheriff, the sheriff", and two deputies, and the prosecuting attorney, who were extensively acquainted with all parts of the county.
Another point made in behalf of the accused is that the jury included improper jurors. These jurors did say that they had made up opinions adverse to the prisoner; but their opinions were not from having heard evidence not even from conversations with witnesses in the case but from the talk or rumor of the county, or from reading the Greenbrier Independent-, and each and all stated definitely that they had no bias or prejudice against Douglass, that they could and would have their minds blank and free from such opinions, and could and would give the prisoner a fair and impartial trial, uninfluenced by such opinions, according to the evidence. This Court has so often considered the question of the competency of jurors that it would be a sheer waste of time to rediscuss the subject here. Unless we upturn numerous decisions heretofore made, these jurors were free from legal exceptions. State v. Baker, 33 W. Va. 319 (1.0 S. E. 639) and cases cited.
Ought the circuit court to have given the prisoner a new trial because the verdict was unsustained by the evidence? I will not detail the pages of evidence. Thomas Reed had a chopping Christmas day, and invited his friends to his cabin home in the mountains to participate in plays usual among the mountaineers on such occasions. Kenos Douglass had not helped at the chopping; and was not invited. He organized a company of five, he being one, and went to Reed's party, several miles away. He commanded the company. He openly exhibited a pistol along the way. The whole evidence shows that he, at least, designed to create disturbance at the party and carry things on in his own way. He and his companions were kindly invited in at Reed's. Scarcely had he entered than he started a fuss with a young boy, Creed Reed, a brother of Thomas Reed, by boisterous, insulting language, laying his hand on his breast, and pushing him back. Another brother, Johnson Reed, remonstrated with Douglass, saying, "Kenos, that is my brother, and you must not hurt him; he is too young," and he replied that he had things to go on as he said, swearing as he said this. Then he and a companion started a play of their own, represented as rough, which Thomas Reed did not like, but let them finish it and then said, "You must go out of my house, if you please." Evidence shows that Douglass used both profane and obscene language in the company of ladies and gentlemen. Thomas Reed did nothing more during this attack on his brother than to say to Douglass he wanted no swearing, and...
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