State v. Farley

• Decision Date: 08 April 1958
• Docket Number: No. 10912,10912
• Citation: 104 S.E.2d 265,143 W.Va. 445
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Winifred Lee FARLEY.

Page 265

104 S.E.2d 265

143 W.Va. 445

STATE of West Virginia v. Winifred Lee FARLEY.

No. 10912.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 21, 1958.

Decided April 8, 1958.

Syllabus by the Court

'A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that plaintiff was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side.' Point 1, syllabus, Halstead v. Horton, 38 W.Va. 727 ; point 2, syllabus, State v. Spradley, 140 W.Va. 314 .

Slaven & Staker, Zane Grey Staker, John M. Rush, Williamson, for plaintiff in error.

W. W. Barron, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., for defendant in error.

HAYMOND, President.

At the January Term, 1957, of the Circuit Court of Mingo County, the defendant, Winifred Lee Farley, was indicted for the murder of Clyde Fields on October 19, 1956, in that county. To the indictment the defendant entered his plea of not guilty. Upon the trial of the indictment during the January Term of the court a jury, on January 30, 1957, returned a verdict of guilty of murder of the second degree. The circuit court overruled motions of the defendant to set aside the verdict and grant him a new trial and in arrest of judgment and by judgment entered February 1, 1957, sentenced the defendant to be confined in the penitentiary of this State at hard labor for the term of from five to eighteen years.

On February 11, 1957, at the same term of court, the defendant made a motion to set aside the verdict and grant him a new trial on the ground of after discovered evidence and filed certain affidavits in support of the motion. By order entered March 16, 1957, the circuit court overruled the motion of the defendant and refused to grant him a new trial.

To the final judgment sentencing the defendant to confinement in the penitentiary this Court granted this writ of error and supersedeas upon the application of the defendant.

The sole question presented on this writ of error is whether the circuit court erred in refusing to grant the defendant a new trial on the ground of the after discovered evidence set forth in the affidavits filed by the defendant.

The homicide for which the defendant was indicted occurred between four o'clock and four thirty o'clock in the afternoon of Friday, October 19, 1956, at a beer tavern in Delorme, Mingo County, known as Don's Place, owned by Noah Ferrell, stepfather of the wife of the defendant. The one story building in which the tavern was operated is located about twenty five feet from the edge of the improve part of West Virginia Route No. 49 and fronts on that highway. The open space between the highway and the building extends along and beyond the front of the building for several feet in each direction. At the front entrance is a large single door which, when opened, swings inside the building and the bottom of the door is several inches above the level of the area between the building and the highway. Outside the building and directly in front of the door is one concrete step of normal height above the ground and the top of the step is a few inches below the level of the floor of the building and the bottom of the door. Inside the building is a large room in which are several booths on one side and a service counter and a bar on the side opposite the booths.

In the early part of the afternoon of the homicide, Clyde Fields, aged forty to forty five years, whose height was about five feet ten inches and whose weight was about 155 pounds, and who limped noticeably because of his use of an artificial leg, and Luther Daniels, a young man nineteen years of age, together visited and drank beer and moonshine whisky at two other taverns in the neighborhood of Don's Place before they came there between three o'clock and four o'clock for the purpose of obtaining more beer. They had no money and the defendant, who with Ferrell operated the tavern, would not permit them to have beer on credit. Ferrell also refused to let Fields have beer. Both Fields and Daniels were intoxicated and trouble occurred between Daniels and a customer named Artemis Mounts. During the altercation between them Fields invited anyone present who cared to do so to engage in a fight with him.

The defendant who was on duty in the operation of the tavern at the time then ordered both Fields and Daniels to leave the building. Fields obeyed, left the room, and remained outside in the open space in front of the entrance. Daniels refused to leave and told the defendant that if he left the defendant would have to put him out of the building. A fight between Daniels and the defendant then ensued during which the defendant hit Daniels three or four times with a wooden nightstick, one of the blows striking his head and ear. Daniels was knocked to the floor, and while on the floor he and the defendant struggled to get the nightstick. The defendant was on top of Daniels and while both were on the floor the defendant struck Daniels on his head with a .32 caliber revolver which the defendant drew from his pocket. After being struck with the revolver Daniels stated that he had 'had enough.' The fight between them ended and Daniels either rose to his feet or was pulled from the floor by the defendant and walked without assistance or was taken by the defendant to the open door at the front entrance to the building where the defendant pushed him through the doorway.

When pushed by the defendant Daniels came in contact with Fields who was then standing in front of the building near the entrance and both of them fell to the ground. Daniels arose and left the scene but while going away he heard the shot which hit Fields and saw him put his hand to his stomach and fall to the ground. After Fields was knocked down, when Daniels was pushed against him, he arose and either stood on the ground in front of the door or approached the door and attempted to enter but before he could get inside the building the defendant, who stood inside the building near the door, fired one shot from his revolver. The bullet struck Fields in the region of his chest, passed entirely through his body, severed a main artery, and produced internal hemorrhages which caused his death.

The testimony of the witnesses produced by the State was to the effect that Fields did not participate in the fight between Daniels and the defendant when it began or while it was in progress; that Fields made no threats and committed no hostile act against the defendant; that while the defendant was near the door with the revolver in his hand Fields swore at the defendant and told the defendant that he was 'not scared of you or nothing you've got' and to 'go ahead and shoot.' Each of the five witnesses produced in behalf of the State, who were in or near the tavern and observed Fields, testified that he did not see a knife in his possession before or when the shooting occurred. After the defendant shot Fields he did not go to his assistance but told someone nearby to take care of Fields and then went from the door toward the rear of the room.

Six witnesses, including the defendant, testified in behalf of the defendant. The defendant, Noah Ferrell, his wife Jessie Ferrell and one other witness testified to the effect that on other occasions before the shooting occurred there had been trouble between Fields and the defendant and on each occasion Fields made threats to kill the defendant; and that Fields had made several similar threats out of the presence of the defendant which were communicated to him before he shot Fields on October 19, 1956. Other than the testimony of some of these witnesses that Fields was attempting to attack the defendant and to enter the building for that purpose with a knife or some instrument when the defendant shot him, there is no evidence that Fields while armed with any weapon ever attempted to execute any threat made by him to kill or injure the defendant.

The defendant, Noah Ferrell and Jessie Ferrell also testified to the effect that Fields was in the room when the fight between Daniels and the defendant began or while it was in progress and that he threw a beer bottle at the defendant which either grazed or struck him; that Fields, while standing in the door during the fight called to Daniels to give the defendant 'a good one' and yelled to the defendant 'I will kill you when this is over.'; that when the defendant was standing near the door holding his revolver, Fields with a knife or other instrument in his hand was standing with one foot on top of the step in front of the door and the other foot in the doorway; that the defendant told Fields not to come in the place again and that he would shoot him if he did; that Fields told the defendant that the defendant would not shoot him, that he did not 'have guts enough to shoot' and that he called the defendant a vile name; and that the defendant then shot Fields as he was attempting to enter the doorway. When the defendant was asked whey he shot Fields he replied 'I was scared.'; 'He was aimed to kill me.'; and when asked why he did not run from Fields he answered 'I had no place to run except to run in where my family was.'

The defendant testified that when...