State v. Duvall
| Decision Date | 26 March 1968 |
| Docket Number | No. 12682,12682 |
| Citation | 160 S.E.2d 155,152 W.Va. 162 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Danny DUVALL. |
Syllabus by the Court
1. 'The offense of voluntary manslaughter involves an intent to kill; and an instruction or charge to a jury defining such offense, which omits any reference to intent as an element of the offense, is presumed to have been prejudicial to a defendant being tried on an indictment under which he might be convicted of that offense, and constituted reversible error.' Point 4, syllabus, State v. Foley, 131 W.Va. 326 (47 S.E.2d 40).
2. In a trial upon an indictment for murder in which the defendant is convicted of voluntary manslaughter and the evidence is not sufficient to justify a verdict of guilty of voluntary manslaughter, such verdict and the sentence of imprisonment entered upon it will be set aside and reversed by the appellate court.
Kay, Casto & Chaney, George S. Sharp, Charleston, for plaintiff in error.
C. Donald Robertson, Atty. Gen., Leo Catsonis, James G. Anderson, Jr., Asst. Attys. Gen., Charleston, for defendant in error.
At the September 1966 Term of the Court of Common Pleas of Cabell County, the defendant, Danny Duvall, was indicted by the grand jury of that county for the murder of Joseph J. Stender. To the indictment the defendant entered a plea of not guilty and upon the trial the jury by its verdict returned October 25, 1966, found the defendant guilty of the crime of voluntary manslaughter. The motion of the defendant to set aside the verdict and grant him a new trial was overruled and by its judgment of January 4, 1967 the Court of Common Pleas sentenced the defendant to be confined in the penitentiary of this State for an indeterminate term of one year to five years. The Circuit Court of Cabell County, by its order of April 21, 1967, refused to grant the defendant a writ of error and to that judgment this Court granted this writ of error and supersedeas on July 10, 1967, upon the application of the defendant.
On and prior to August 12, 1966, the day of his death, Joseph J. Stender, had resided with his mother and sister in South Point, Ohio. He was unmarried, twenty three years of age, six feet two inches in height, and weighed about two hundred pounds. He was a car salesman and enjoyed normal good health. About 10:00 o'clock that night he and two other young men, Thompson and McKibben, left South Point and proceeded to a place opposite the Surfer Club, an establishment located on Fourth Avenue near its intersection with Sixteenth Street in Huntington, which was patronized by college students and which afforded its patrons an opportunity to dance and obtain refreshments. Stender, accompanied by Thompson, entered and went to the rear of the Surfer Club where Stender drank some beer but did not become noticeably intoxicated.
Earlier that evening Mary Lou Romine, twenty one years old, employed as an elementary school teacher, whose parents lived in South Point, had stopped at Stender's home to bid him goodbye before leaving to resume her teaching away from South Point. She and Stender were friends and had had dates together during her summer vacated in South Point.
After leaving the Stender home about 9:00 o'clock in the evening, Miss Romine came to Huntington by automobile and when she was near the Surfer Club and at the traffic light at the intersection of Fourth Avenue and Sixteenth Street, she saw the defendant, whom she had known for about a year and a half. He was standing in front of the Surfer Club and she greeted him and shortly afterwards parked her automobile and went into the Club. The defendant followed her in and they engaged in three or four dances. Near the end of her last dance with the defendant, Stender entered the Club. Neither Stender nor Miss Romine knew or had told the other that either of them intended to visit the Surfer Club that evening, and their presence there together was merely an unplanned accidental occurrence. They greeted each other and she and Stender danced together until the music stopped a short time after they had started to dance.
The evidence is conflicting as to what happened between Stender and the defendant while they and Miss Romine were in or were leaving the Club. She testified that no trouble then occurred between Stender and the defendant and that in leaving the Club with Stender he did not push or force her to go with him, that though he placed and kept his hand on the nape of her neck he did not act in a rude or insolent manner, and that he usually acted in that way when they walked together. On the contrary, the defendant testified that Stender, whom the defendant did not know and had never before seen, grabbed his shoulder and shoved him away and pushed Miss Romine and forced her to leave the Club with him. The defendant was outside and in front of the entrance to the Club when Stender and Miss Romine came out, and according to the defendant after Stender and Miss Romine separated in the crowd Stender came to the defendant, asked him if he was waiting for Stender, 'punched' the defendant and told one of the bystanders that he and the defendant 'were going to fight.'
David Duvall, the older brother of the defendant, who did not know Stender and had never previously seen him, who was six feet in height and weighed 210 pounds, and who had been inside the Club for several minutes, came outside and was on his way to Sixteenth Street to get his parked automobile when he encountered Stender who had come out of the Club with Miss Romine. According to David Duvall, Stender said to him: 'Fat boy, if you want some of this you can get it, too.'; that David Duvall told Stender 'all I want to do is to go to my car, I don't want any trouble'; that they argued and cursed each other; that at that time David Duvall did not see the defendant; that he then 'flipped' his cigarette toward Stender; that the cigarette hit Stender near his forehead; that Stender 'ducked' and went 'to his right'; that someone then yelled and David Duvall turned and saw that Stender 'ricochetted off' the shoulder of a bystander and 'into the wall' of the nearby building. At that time he saw the defendant standing behind Stender but he did not see the defendant hit Stender.
Other witnesses give a different version of the fight and testified that the lighted cigarette tossed by David Duvall struck Stender in his eye and that he lowered his head and staggered to the center of the sidewalk rubbing his eye; that the defendant ran to...
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