State v. Ed. Arrington.

• Decision Date: 08 March 1921
• Docket Number: No. 4150.,4150.
• Court: West Virginia Supreme Court
• Parties: State v. Ed. Arrington.

88 W.Va. 152

State

v.Ed. Arrington.

No. 4150.

Supreme Court of Appeals of West Virginia.

Submitted March 1, 1921.

Decided March 8, 1921.

1. Criminal Law Accused May Testify as to His Feelings as to Decedent and His Motives.

In a trial for homicide, where one of the issues is self defense, it is competent for the accused to testify concerning his belief and feelings as to the conduct of the deceased at the time of the killing, and to state the motive or purpose which prompted him to fire the fatal shot. (p. 154).

2. Homicide On Issue of Self Defense Uncommunicated Threats Against Accused Held Admissible.

Where, on a charge of homicide, the excuse is self defense, and the testimony is conflicting as to the aggressor, there being some to show that it was the deceased, his threats against the accused though not communicated to the latter, are relevant and admissible to show the deceased's attitude of mind shortly prior to the combat. (p. 155).

3. Same Evidence That Deceased Was Unarmed Admissible on Issue of Self Defense.

Where self defense is an issue in a trial for homicide, evidence that the deceased was unarmed at the time of the killing is admissible. (p. 156).

4. Same Deceased's Good Character Assumed Until Attacked by Defense.

Until attacked by the defense, the deceased's character for peaceable and quiet conduct is presumed to have been good, and the state may not make it a subject of primary proof. (p. 156).

5. Same Uncommunicated Threats Held to Justfy Admission of Evidence of Prior Good Character.

But evidence of uncommunicated threats by the deceased to do bodily harm to the accused constitute a direct attack upon his reputation for quiet and peaceable conduct, and in conjunction with other testimony tending to show some aggression on his part, justify the admission of evidence of prior good character, in order to create a countervailing inference that he was not the aggressor. (p. 156).

Error to Circuit Court, Wyoming County.

Ed. Arrington was convicted of second degree murder, and he brings error.

Reversed and remanded.

Grover C. Worrell, J. M. McGrath and R. E. Hughes, for plaintiff in error.

E. T. England, Attorney General and R. A. Blessing, Assistant Attorney General, for the State.

Lynch, Judge:

From a judgment of twelve years' imprisonment in the penitentiary upon a verdict of a jury for second degree murder, Ed. Arrington, defendant, prays to be released and the case resubmitted to another jury for retrial. He shot Mike Yek February 9, 1920, at Iroquois, Wyoming County, and from the wound so inflicted Yek died a moment later. Those who witnessed the tragedy, besides deceased, were Albert Foy, Okey Helmandollar and defendant Arrington, each of whom testified in the order named, Foy on behalf of the State, the other two on behalf of the defendant.

Foy's version of the affair is substantially this: He was walking along the street about eight o'clock in the evening, and had just passed defendant and Helmandollar going in the opposite direction, when Yek approached them, Foy then being not more than 18 feet distant from them. He heard one of the two men say: "Who is that?", to which the other responded: "Some d n sneak," but was unable to determine which of the two was the questioner and which made the response. Immediately "they commenced to mix up a little, * * * and this fellow Yek run back a little piece; I don't know whether Arrington hit him or not; and he (Yek) had his hand on his hip; I don't know whether he had his hand in his pocket, or whether he was pulling up his pants. * * * He started toward Arrington, and I saw the pistol," and then the shot was fired.

Helmandollar and defendant substantially agree in their statement of what occurred. The former was standing not more than 12 feet from Arrington when Yek approached. According to their story, Yek said to defendant: "Where are you going?"; to which the latter replied:" I am going up the road;" and Yek responded: "You are a d d liar;" whereupon a conflict occurred. Yek stepped hack a few paces, then started towards defendant with his hand in his hip pocket. The latter says he heard some one, he does not know who, say: "Look out, Ed!"; and "I jerked out my gun and shot."

The first assignment of error goes to the sufficiency of the indictment, but we see no serious defect in it, and defendant has not pointed out any. The next assignment likewise was not discussed by defendant or relied on by him before this court, and we are unable to perceive any possible ground of prejudice to him in permitting Mrs. Yek to state what little she knew of the fatal shooting of her husband, namely, the hour when he left home to go to the store, when next she saw him and his condition at that time, the location of the wound, his age, nationality, occupation and children. However, proof of the number, names, ages and condition of the children or their mother can have no relevancy to the issues involved in a trial for homicide.

Assignments 3, 4, 5 and 6 present the question whether the court erred in refusing to permit defendant to testify before the jury as to his purpose in firing the fatal shot. He was asked: "Now what was your purpose in firing the gun?" The court refused to permit him to answer, except for the purpose of completing the record, and his reply then was: "To save my own life." He was asked further: "Did you have any other purpose in firing the shot?", and after a similar refusal to permit his answer to go to the jury, he replied, on the record; "No." Since malice, express or implied, is an essential element of murder in the first or second degree (State v. Douglass, 28 W. Va. 297; State v. Panetta, 85 W. Va. 212, 101 S. E. 360; State v. Galford, 87 W. Va. 358, 105 S. E. 237), defendant had the right to disprove it in any legitimate manner. His mental attitude towards deceased at the instant he shot was material to his defense. In a trial for homicide, where one of the issues is self defense, it is competent for the accused to testify concerning his belief and feelings as to the conduct of the deceased at the time of the killing, and to state the motive or purpose which prompted the fatal shot. These statements should have gone to the jury, to be considered by them in connection with other facts and circumstances in the case, and to receive such weight and credence as in their opinion they merited. State v. Evans, 33 W. Va. 417; State v. Alder son, 74 W. Va. 732; State v. Panetta, cited.

Assignments 7, 8, 9 and 10 involve questions relating to the admissibility of threats by the deceased to do bodily harm to the accused, made in the presence of other persons, but not communicated to him. Evidence of communicated threats tends to throw light upon the mental attitude of the accused towards deceased, while uncommunicated threats serve a reverse purpose, namely, as evidence of the mental attitude of the deceased towards the accused. Where the chief defense of the latter is self defense, it is of prime importance to determine which of the parties to the combat was the aggressor. If the accused, then undoubtedly such threats would not be admissible, for his aggression would of itself constitute an express refutation of any implication of self defense that might arise from threats of the accused. But where...