State v. Durham

• Decision Date: 13 March 1973
• Docket Number: No. 13233,13233
• Citation: 195 S.E.2d 144,156 W.Va. 509
• Parties: STATE of West Virginia v. Katherine Virginia DURHAM.
• Court: West Virginia Supreme Court

Page 144

195 S.E.2d 144

156 W.Va. 509

STATE of West Virginia v. Katherine Virginia DURHAM.

No. 13233.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 16, 1973.

Decided March 13, 1973.

Syllabus by the Court

1. 'Under our decisions, the corpus delicti consists in cases of felonious homicide, of two fundamental facts: (1) the death; and (2) the existence of criminal agency as a cause thereof. The former must be proved either by direct testimony or by presumptive evidence of the strongest kind; but the latter may be established by circumstantial evidence or by presumptive reasoning upon the facts and circumstances of the case.' Point 6 Syllabus, State v. Beale, 104 W.Va. 617, 141 S.E. 7, 141 S.E. 401.

2. In order to sustain a conviction for felonious homicide, the corpus delicti is properly proved by sufficient evidence showing that the initial wound caused the death indirectly through a chain of natural causes.

3. A defendant may be held criminally responsible where he inflicts upon another a wound resulting in death, even though the cause of death is related to the proper treatment of the wound or related to such treatment or effect of a pre-existing physical disability of the victim.

Jones, Williams, West & Jones, Jerald E. Jones, Clarksburg, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., George E. Lantz, Deputy Atty. Gen., Richard E. Hardison, E. Leslie Hoffman, III, Asst. Attys. Gen., Charleston, for defendant in error.

SPROUSE, Judge:

This criminal case is before the Court on a writ of error and supersedeas granted to the final judgment of the Circuit Court of Doddridge County entered on December 16, 1971, by which judgment that court sentenced Katherine Virginia Durham to confinement in the West Virginia Penitentiary for Women for a term of not less than one year nor more than five years. The sentence was imposed upon a jury verdict finding her guilty of voluntary manslaughter pursuant to an indictment charging her with the murder of Franklin Calvin Durham.

The sole issue relied upon by the defendant is that the State failed to prove the corpus delicti. The issue was properly raised at the trial. The defendant's contention is that the medical and other evidence did not establish that the wound inflicted by the defendant caused the death of her husband. Since this is essentially an evidentiary determination, it is necessary to look at the evidence of the case in some detail.

The defendant, Katherine Virginia Durham, was married to the deceased, Franklin Calvin Durham, at the time she shot him. The Durhams, at the time of the incidents leading to the death of the deceased, lived together 'at the foot of Tar Kiln', a rural area in Doddridge County, but they had been having domestic difficulty for several months. The defendant, the proprietor of a beer tavern, had been previously married. The deceased had been unemployed for some time, and apparently spent most of his time, when not helping at the tavern, visiting other taverns and places of entertainment and frequently indulging in the liquid refreshments offered by those establishments.

The deceased and a companion were engaged in this kind of activity the night preceding the shooting, and the deceased was involved in other difficulty involving the defendant wife, which is not important for the purpose of this decision. The details concerning the deceased's entry into his home and the consequent shooting by his wife, are likewise not decisive in this case inasmuch as her act of shooting is admitted and her defense of accidental shooting was obviously not accepted by the jury who found her guilty of voluntary manslaughter. It is sufficient to state that the deceased at about 8:30 or 9:00 o'clock on the morning of March 21, 1971, entered through the front door of their house, and within seconds he was shot in the abdomen by a bullet fired from a .22 caliber pistol, which Mrs. Durham had inherited from her first husband.

The deceased, who was lying on the floor, apparently comfortable, at the time the sheriff and the ambulance arrived, was taken at his request to St. Mary's Hospital in Clarksburg. There he was seen in the emergency room at 9:55 a.m. on March 21, 1971 by Dr. Walter E. Williamson, Jr., a surgeon of Clarksburg, who had been called to the emergency room to treat him. The doctor was present in the emergency room when the victim arrived.

Dr. Williamson's examination revealed a gunshot wound in the upper abdomen, on the upper side. From his examination, the doctor determined that the deceased's condition was satisfactory. 'The vital sounds were all right.'

The entrance wound of the bullet was in the 'right upper costal margin, three inches below that and two inches to the right of the midline.' The exit wound was in the right flank, one inch to the right of the midline and two inches above the iliac crest. Dr. Williamson indicated that the bullet passed through the deceased's body in a straight line and no vital organs were punctured or hit. The bullet which passed through the victim was found in his clothing. The doctor asked the deceased some questions concerning his medical history, and he mentioned no previous serious illness or injuries. The deceased later revealed to the doctor that he had been drinking quite a bit before the injury.

The victim died at 6:00 o'clock a.m. on March 22, 1971, the day following the shooting. In the interim, Dr. Williamson had performed surgery on the victim, describing his procedures as normal and necessary for this type of wound. The only injury found during the surgery was a 'laceration of the mesentery of the bowel, which are the supporting tissues holding the bowel in place, and a hematoma was present in this mesentery which contained several hundred cc's of blood.' The operation took one hour and twenty minutes. The doctor indicated that either the anesthetic fluothane, N20 or Nitrous oxide, succinyl choline or surital, one or the other was administered, but he did not know which. He also ordered medication consisting of seconal, numorphan and atropine, which he described as usual pre-operative medications. Later, the patient was given ampicillin, an antibiotic, intravenous fluids, aspirin, thorazine and nasal oxygen.

After the operation, the doctor saw the patient at 5:30 p.m. the day of the operation, and his condition was good. He saw him again at 4:15 a.m. the next morning, and his condition had deteriorated drastically. The doctor did not see him again, and the patient expired at 6:00 o'clock a.m.

It is undisputed that the defendant wounded the deceased with a .22 caliber bullet, that he was immediately taken to the hospital and that although the wound was of a minor nature, an operation was necessary to clean the wound and repair any damage in the area of the injury. No vital organ was damaged by the wounding, but there was medical testimony that the deceased had a pre-existing condition of a diseased or 'fatty' liver. The deceased died in the hospital approximately 22 hours after receiving the wound, and an autopsy was performed. Although their testimony was not fully developed, Dr. Williamson, the surgeon, and Dr. Fischer, the pathologist who conducted the autopsy, testified concerning the cause of death.

Dr. Williamson gave the following pertinent testimony:

'Q. Doctor, was an operation necessary?

'A. Yes sir, any penetrating wound of the abdomen must be explored * * *.'

'Q. Did your primary examination reveal any condition that would of and in itself cause death, excluding the gunshot wound?

'A. None that I am aware of.'

'Q. * * * what outside of the medication and treatment which was administered * * * contributed to this man's death?

'A. His obesity may have contributed to it, his fatty liver that he had secondary to drinking may have contributed to it.'

Dr. Fischer, the pathologist, testified in pertinent part as follows:

'A. * * * The only disease we found were those of the liver and the lungs. The liver showed a fatty type degeneration that can be caused by many diverse conditions. The lungs showed edema and congestion and showed a lot of fluid and blood in the lungs.

(The pathologist in later testimony excluded the condition of the lungs as a contributing factor to the death.)

'Q. What * * * was the seriousness of the wound * * *?

'A. It was not serious.

'Q. Would the man have survived from the wound had no operation been performed?

'A. Probably, I couldn't say for certain.'

'Q. What, primarily, did you attribute to the cause of death itself * * *?

'A. Of course, I am not an expert witness, I don't believe, but if I were to pick a cause of death, I would say a hepatitic liver in origin.'

'Q. Could you clarify * * *?

'A. He had a fatty damaged liver and just about any kind of drug could trigger the liver causing hepatitic death.

'Q. How long does it take such a condition of the liver to evolve?

'A. * * * it can happen in hours or it can happen in weeks.

'Q. Was the condition of the liver you found in his body an old condition or new condition * * *?

'A. I would say probably fairly old.'

'Q. Doctor, * * * what in your opinion would have been the ultimate result of his condition had no operation been performed?

'A. An awful lot really does depend on the past history. * * * I have to get all of this knowledge and put it together.'

The pathologist was then read a list of drugs which had been administered to the deceased after his operation and asked if they would qualify as chemical agents such as could have triggered the hepatitic death, and the pathologist testified that any of them would qualify as such chemical agent. The pathologist indicated that the autopsy in this case 'is not too helpful in establishing the cause of death.' Doctor Fischer testified that the fatty changes in the liver probably were not severe enough in themselves to cause death. He testified, however, that, 'On the other hand, a fatty liver subjected to other trauma or...