State v. Evans.
| Decision Date | 29 January 1890 |
| Citation | 33 W.Va. 417 |
| Court | West Virginia Supreme Court |
| Parties | State v. Evans. |
The court should sustain a demurrer to a plea of autrefois acquit, when the plea shows on its face that the offence for which the pris- oner was formerly tried is separate and distinct from that for which he stands indicted.
A special plea, which is equivalent to the general issue of "not guilty," may be rejected by the court in a criminal case without error.
A party has a right to have his instruction given in his own language, provided there are facts in evidence to support it, that it contains a correct statement of the law and is not vague, irrelevant, obscure, ambiguous, or calculated to mislead.
The principles laid down in Cain's Case, 20 W. Va. 079, reaffirmed, as defining on the one hand the circumstances which will excuse the defendant from retreating, and on the other, repudiating the erroneous doctrine, so fruitful of murders and street-fights wherever promulgated, that a mere threat to kill on sight will justify a party, in a civilized community, in slay ing the threatener, unless the latter is, at that very time, engaged in some overt, hostile act indicative of immediate and imminent danger to the defendant,
Since the passage of our statute permitting the prisoner to testify in his own behalf, he is a competent witness in a case of homicide to testify to the state of his own feelings when the fatal act was committed, his testimony to be taken for what the jury may think it worth.
To extend the limits of the admissibility of hearsay testimony so as to include so vague and general a subject as the reputed "influence" of one man over another would be unwarranted by authority or precedent; and the court did not err in excluding such a question.
Evidence of communicated threats is calculated to shed light upon the mental attitude of the prisoner towards the deceased when the homicide occurred; uncommunicated threats are evidence of the mental attitude of the deceased towards the prisoner. Both are admissible.
The principle laid down in State v. Abbott, 8 W. Va. 743, 744, reaffirmed.
R. W. Monroe and II B. Gilkerson for plaintiff in error.
Attorney General Alfred Caldwell for the State.
At the May terra, 1889, of the Circuit Court of Hampshire county, the prisoner stood indicted for the murder of Jacob Kirby, and on his trial the jury found him guilty of voluntary manslaughter. A motion was made in arrest of judgment and for a new trial, which was argued by counsel, and taken under advisement by the court until on the 14th day of October following. The court overruled the motion, and entered up judgment, and sentenced the prisoner to the penitentiary for two years. On the 4th of November, 1889, a writ of error was allowed by this Court. During the progress of the trial various exceptions were reserved, and at its close, as we have seen, the motion in arrest of judgment and for a new trial was overruled, and exceptions taken by the prisoner to this final action of the court.
The first error assigned by the prisoner is that the court erred in sustaining the demurrer to the defendant's special plea of autrefois acquit. This plea is set out at length in the record, but it will only be necessary to state its substance, in order to decide upon the validity of the exception taken to the action of the court. The plea sets out that the crime charged against him in the present indictment is the same felonious act charged against him in a former indictment for the murder of one John S. Hoke, upon which former indictment he had been acquitted. The plea further alleges that the evidence whereby the State can or will attempt to prove the present indictment will be the same as that produced against him on the trial of the former indictment; and the plea then sets out at length the evidence adduced on the former trial, and also that which the plea alleges will be adduced on the pending trial. The plea prays judgment of the court, and that the prisoner may be hence dismissed. The plea was demurred to, the prisoner joined, and tie court sustained the demurrer.
The plea alleges, it is true, that there was but one offence, yet the facts stated in the plea clearly establish that the offences charged in the respective indictments were separate and distinct. A case can be conceived where such a plea might be held good. For example, tie engineer of a railway train might be charged with negligently and feloniously causing the death of one passenger in a wreck, and, being tried and found by the jury entirely blameless for the accident, such acquittal might, perhaps, constitute a perfect defence to a subsequent indictment for killing another passenger, who was on the same train. But this case presents no such question. The killing was the result of a separate act in ach case, committed under degrees of provocation not necessarily identical, accompanied by apprehensions not necessarily the same. In fine, every element to constitute two separate offences appears on the face of the plea to exist in this case, and therefore the demurrer was properly sustained.
There was offered by the prisoner a second special plea, setting out that there was a conspiracy between the deceased and one Hoke, in pursuance of which they were assailing the prisoner when he killed the deceased in self-defence. This plea was embraced in and equivalent to the general issue of "not guilty," and hence there was no error in rejecting it. A special plea in a civil case which amounts only to the general issue, this Court has held, ought to be rejected, and there is no material difference in the general rules of pleading in civil and criminal causes. See Van, Winkle v. Blackford, 28 W. Va. 670; Fant v. Miller, 17 Gratt. 47.
The first bill of exceptions is for the refusal of the court to give the following instruction:
And here, at the outset, we may dispose of an objection urged by the Attorney-General, that these bills do not set out any evidence to show that there was sufficient ground to support the hypothesis of the instructions, and that the court will not look from one instruction to another. This court has held, however, that where there is an exception, wherein the court has certified all the evidence or facts proved in the case, the court will look to that in determining the question as to other bills of exceptions; and, as the twelfth exception in this case contains such a certificate, the difficulty raised by the Attorney-General is obviated. See Hall v. Hall, 12 W. Ya. 2. It appearing, therefore, that there was evidence which tended to support the hypothesis of this first instruction, we think that it correctly states the law of self-defence in this State, and that the court erred in refusing it as it was asked, and giving in lieu of it a somewhat similar one, but weighted down by lengthy qualifications, based upon selection from the evidence of particular facts, which are thus given undue prominence, while the force of the exact and true statement of the principle which the defendant was endeavoring to get before the jury was dissipated and destroyed. A party has a right to have his instruction given in his own language, provided there are facts in evidence to support it, and provided that it contains a true statement of the law, and is not obscure, ambiguous or calculated to mislead.
The law of self-defence in this State was fully discussed in Cain's Case, 20 W. Va. 679, and we reaffirm the principles therein laid down, as follows:
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