State v. Evans

• Decision Date: 15 December 1983
• Docket Number: No. 15854,15854
• Citation: 172 W.Va. 810,310 S.E.2d 877
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Jeffrey Eugene EVANS.

Page 877

310 S.E.2d 877

172 W.Va. 810

STATE of West Virginia v. Jeffrey Eugene EVANS.

No. 15854.

Supreme Court of Appeals of West Virginia.

Dec. 15, 1983.

Syllabus by the Court

1. "Whether malice exists in a particular case is usually a question for the jury, and although in perfectly clear cases, the courts have held that the evidence was not sufficient to show malice even where the jury had found to the contrary, yet malice is a subjective condition of mind, discoverable only by words and conduct, and the significance of the words and conduct of an accused person, whenever there can be doubt about such significance, addresses itself peculiarly to the consideration of the jury." Syl. pt. 4, State v. Hamrick, 112 W.Va. 157, 163 S.E. 868 (1932).

2. "An instruction in a criminal trial which allows the jury to infer rather than presume the intent of the defendant avoids the shifting of the burden of proof and is therefore constitutionally permissible." Syl. pt. 3, State v. Greenlief, 168 W.Va. 561, 285 S.E.2d 391 (1981).

3. "It is not reversible error to refuse to give instructions offered by a party that are adequately covered by other instructions given by the court." Syl. pt. 20, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966).

4. "Where one, upon an indictment for murder, relies upon accidental killing as a defense, and there is evidence tending in an appreciable degree, to establish such defense, it is error to refuse to instruct the jury that if they believe from the evidence that the killing was the result of an accident, they should find the defendant not guilty." Syl. pt. 10, State v. Legg, 59 W.Va. 315, 53 S.E. 545 (1906).

5. The privilege against adverse spousal testimony contained in W.Va.Code 57-3-3 [1931] applies only where the parties stand in the relation of husband and wife.

D. Grove Moler, Mullens, for appellant.

Fredrick S. Wilkerson, Asst. Atty. Gen., Charleston, for appellee.

McHUGH, Justice.

Jeffrey Eugene Evans appeals from his conviction, by a jury in the Circuit Court of Wyoming County, of second degree murder. The appellant makes five assignments of error: (1) the essential element of malice was not proven beyond a reasonable doubt; (2) a State's instruction, permitting the inference of intent, should not have been given; (3) it was error to refuse a defense instruction on reasonable doubt; (4) it was error to refuse a defense instruction on accident; and (5) the appellant's former wife should not have been permitted to testify. We find that the trial court erred in not giving the requested instruction on accidental discharge of the weapon. Consequently, we reverse appellant's conviction and award him a new trial.

In an indictment handed down on October 8, 1980, a grand jury charged the appellant with the murder of Ernie Hall. Following a trial on May 18, 1981, the appellant was convicted of second degree murder. He appealed to this Court on August 26, 1981. We reversed the conviction on the ground that the trial court erroneously permitted the appellant's wife to testify against him at trial in violation of the statutory privilege against adverse spousal testimony. State v. Evans, 170 W.Va. 3, 287 S.E.2d 922 (1982).

The appellant was retried on October 29, 1982, on the charge of murder, and he was again convicted of murder in the second degree. On November 19, 1982, a judgment order was entered. The appellant was sentenced to an indeterminate term of five to eighteen years in the West Virginia State Penitentiary at Moundsville. The appellant's motion to set aside the verdict and grant a new trial was denied on November 29, 1982.

The facts of this case are set forth in our prior opinion. State v. Evans, 170 W.Va. at 3-4, 287 S.E.2d at 923. We do not repeat them here. The evidence at the appellant's retrial was substantially the same as at the first trial, with the exception that the appellant's former wife did not testify about interactions and communications between her and the appellant. ¹ Her testimony was confined to her being present near the mobile home, hearing one shot, and then hearing the decedent say, "Man, why'd you do that?"

I.

The appellant's first assignment of error is that there was insufficient evidence to prove malice beyond a reasonable doubt. Malice is an essential element of second degree murder. State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978); State v. Ponce, 124 W.Va. 126, 19 S.E.2d 221 (1942). ² In syllabus point 4 of State v. Hamrick, 112 W.Va. 157, 163 S.E. 868 (1932), we stated:

Whether malice exists in a particular case is usually a question for the jury, and although in perfectly clear cases, the courts have held that the evidence was not sufficient to show malice even where the jury had found to the contrary, yet malice is a subjective condition of mind, discoverable only by words and conduct, and the significance of the words and conduct of an accused person, whenever there can be doubt about such significance, addresses itself peculiarly to the consideration of the jury.

The customary manner of proving malice in a murder case is the presentation of evidence of circumstances surrounding the killing. State v. Starkey, 161 W.Va. at 522, 244 S.E.2d at 223. Such circumstances may include, inter alia, the intentional use of a deadly weapon, State v. Toler, 129 W.Va. 575, 579-80, 41 S.E.2d 850, 852-53 (1946), words and conduct of the accused, State v. Hamrick, 112 W.Va. at 166-67, 163 S.E. at 873, and, evidence of ill will or a source of antagonism between the defendant and the decedent, State v. Brant, 162 W.Va. 762, 252 S.E.2d 901, 903 (1979).

We conclude from our review of the trial record that there was sufficient evidence from which the jury could find malice. Evidence was presented below which established a source of antagonism between the appellant and the victim. ³ Therefore, we find that there was sufficient evidence to convince impartial minds beyond a reasonable doubt that the appellant acted with malice.

II.

The appellant contends that it was error to give State's Instruction No. 5, whereby "the [trial] court instruct[ed] the jury that there is a permissible inference of fact that a man intends that which he does, or which is the immediate and necessary consequences of his act." In several recent cases, we have held such an instruction to be constitutionally permissible. For example, in syllabus point 3 of State v. Greenlief, 168 W.Va. 561, 285 S.E.2d 391 (1981), we held: "An instruction in a criminal trial which allows the jury to infer rather than presume the intent of the defendant avoids the shifting of the burden of proof and is therefore constitutionally permissible." See also State v. Less, 170 W.Va. 259, 294 S.E.2d 62 (1981); State v. White, 167 W.Va. 374, 280 S.E.2d 114 (1981); State v. Ferguson, 165 W.Va. 529, 270 S.E.2d 166 (1980); State v. Wright, 162 W.Va. 332, 249 S.E.2d 519 (1978). We find no error in the giving of State's Instruction No. 5.

III.

Defendant's Instruction No. 15, which was refused by the trial court, would have told the jury that "[a] verdict of 'not guilty' in a criminal case such as the one on trial does not necessarily mean that the innocence of the defendant has been proved; such a verdict means only that guilt of the defendant has not been established beyond a reasonable doubt."

The appellant contends that Instruction No. 15 was an "essential complement" to other instructions concerning the State's burden to prove every element of the offense beyond a reasonable doubt. The appellant also contends that he was entitled to have the instruction given on the ground that it presented a theory of the case in the appellant's own language. This latter contention is without merit. The instruction on its face is unrelated to any "theory" of the case. Rather, appellant offered it to elucidate the reasonable doubt standard. ⁴

The former contention also lacks merit. In the recent case of State v. Ashcraft, 172 W.Va. 640 at 652, 309 S.E.2d 600 at 612-613 (1983), we said,

[i]t is well established in West Virginia that, "it is not reversible error to refuse to give instructions offered by a party that are adequately covered by other instructions given by the court." Syllabus Point 20, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966). See also State v. Helmick, 169 W.Va. 94, 286 S.E.2d 245 (1982); State v. Shaffer, 138 W.Va. 197, 75 S.E.2d 217 (1953); State v. Blankenship, 137 W.Va. 1, 69 S.E.2d 398 (1952) overruled, in part, on other grounds, State v. McAboy, 160 W.Va. 497, 236 S.E.2d 431 (1977); State v. Lewis, 133 W.Va. 584, 57 S.E.2d 513 (1949).

The jury in the case sub judice was properly and adequately instructed on the application of the reasonable doubt standard in a criminal trial. For the foregoing reasons, there was no error in the refusal of Defendant's Instruction No. 15.

IV.

The appellant's defense to the murder charge was that the gun accidentally discharged. The appellant testified that he left the trailer for a few minutes. When he returned, Ernie Hall was handling one of the appellant's guns--a 9mm semi-automatic pistol--which the appellant knew to be loaded. He asked Hall to give him the gun, reaching for it with his left hand. At the same time, the appellant looked away from Hall and reached with his right hand into a cabinet to get a bong for smoking marihuana. Hall passed the gun to the appellant who took hold of it by the handle. As the gun came into his hand, it discharged, firing the fatal bullet into Hall's face just above the right eyebrow.

In support of his theory of the case, the appellant offered Defendant's Instruction No. 16, which reads as follows: "If you, the jury, believe from the evidence that the death of Ernie Hall was caused by an accidental discharge of the weapon introduced into evidence, you shall find defendant not guilty as charged." An identical instruction was given, over the prosecutor's objection, at the appellant's first trial. Upon...