State v. Flint

• Decision Date: 26 February 1957
• Docket Number: No. 10834,10834
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Randolph A. FLINT.

Page 677

96 S.E.2d 677

142 W.Va. 509

STATE of West Virginia v. Randolph A. FLINT.

No. 10834.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1957.

Decided Feb. 26, 1957.

Syllabus by the Court

1. A defendant in the trial of a felony is entitled to a panel of twenty qualified jurors, each free from bias or prejudice, before being required to exercise his right as to peremptory challenges.

2. It is not reversible error for a trial court to refuse to excuse a venireman from the panel of twenty, where, on his voir dire, after full examination by counsel and the trial judge, it is shown that the venireman has formed no opinion as to the guilt or innocence of the defendant, that he could decide questions of fact entirely from the evidence, impartially, and without any bias or prejudice, although the juror may have also stated that he had heard the case talked about, and that it would require evidence to overcome impressions formed. '* * * The true test is whether without bias or prejudice he can render a verdict solely on the evidence, under the court's instructions, disregarding any prior opinion which he may have entertained'. Part Point 1, Syllabus, State v. Dephenbaugh, 106 W.Va. 289 .

3. Evidence of a threat made by a defendant on trial for murder, against the life of the person alleged to have been murdered, coupled with a statement of the manner or means by which such threat was intended to be carried out, is admissible.

4. 'In a criminal case, affidavits showing that the accused was of a weak mentality, but which, taken as a whole, fail to show that he did not know right from wrong, with respect to the offense charged against him, are not sufficient to warrant the granting of a new trial on the ground of after discovered evidence, bearing on the alleged insanity of the accused.' Point 2, Syllabus, State v. Beckner, 118 W.Va. 430 .

5. A person, though possessing subnormal mental capacity, is yet responsible for his criminal act if at the time of the act he knows right from wrong, and knows the nature and character of the particular act, and its probable consequences.

6. 'A verdict of guilty in a criminal case will not be reversed here because of error committed by the trial court, unless that error is prejudicial to the accused.' Point 5, Syllabus, State v. Rush, 108 W.Va. 254 .

R. J. Thrift, Fayetteville, John H. McCutcheon, Summersville, Elmer D. Strickler, Richwood, for plaintiff in error.

John G. Fox, Atty. Gen., Angus E. Peyton, Asst. Atty. Gen., for defendant in error.

GIVEN, Judge.

The defendant, Randolph A. Flint, on November 16, 1954, at a regular term of the Circuit Court of Nicholas County, was indicted for murder of Freda Garrett Flint, the wife of defendant. Defendant was tried at the May, 1955, term of the court, and a verdict of murder of the first degree, with recommendation, was returned by the jury. On September 14, 1955, defendant was sentenced to the penitentiary for the term of his life.

The homicide occurred on the night of September 29 or the early morning of September 30, 1954, at a place of business known as the 'Wagon Wheel', on Fenwick Mountain, owned and operated by defendant and his wife. Beer was sold and dances were held at the place of business. The room in the building in which the business was operated was divided by a partition through which a doorway led from that part of the room where merchandise was sold to the dance hall. The doorway through the partition was near the front of the building. To the right, as entering the front door of the building, was a counter over which sales were made. An open way around the counter, from the space in front thereof was, at the rear of the room, approximately thirty one feet from the front door.

On the evening of the homicide, a dance was in progress at the place of business until near midnight. The defendant participated in the dance, apparently having employed a person by the name of Layton Stanley to attend the sales at the counter on that evening. Though usually present when dances were held, Mrs. Flint was not at the dance on the evening of the homicide, having on that evening, in company with her father, her brother, her son, and the brother's wife, attended automobile races at Rupert, West Virginia. After the dance had ceased, just before midnight but before the the participants in the dance had left the place of business, Mrs. Flint appeared in the room wherein merchandise was sold and turned off the electric lights. On request of someone at the counter that the lights be turned back on, she stated: 'I am not going to do it'. Defendant then stated to her: 'You get the hell out of here and get to the house, and when you get to the house you stay at the house'. Whereupon she replied to defendant: 'I am not going to do it. I have got a thousand dollars invested in this place and it is just as much mine as it is yours'. After further such quarreling, it was testified that defendant stated: 'I mean for you to get to the house by God, or I'll shoot you', and that 'So he told her that again and so whenever she answered, 'I ain't going' so he up with the gun like that and shot her'. Mrs. Flint was near the front of the room when the shot was fired, and fell to the floor, partly through the doorway leading through the partition. Defendant, with the help of others, caused Mrs. Flint to be almost immediately removed to a hospital where, after a few hours, and without regaining consciousness, she died from the effects of the would caused by the shot.

At the time the shot was fired, the lights in the building were not on, but light from headlamps of an automobile parked in front of the building, shining through a window, sufficiently lighted the inside of the room to enable persons therein to observe the movements of defendant. It seems to be undisputed that defendant, after Mrs. Flint had refused to leave the place of business, went behind the counter, obtained the gun, a '32-20 caliber' Winchester center fire rifle, and that the rifle was in the hands of defendant at the time the shot was fired. James E. Bryant, a witness testifying for the State, was asked: 'How was the defendant, Randolph Flint, holding that gun at that time?'; to which he answered: 'He was holding the gun down first when I seen it, then he raised it up and fired the shot'. Other testimony strongly corroborates the statement quoted. The defendant did not testify. There appears no question that he had been drinking beer on the evening of the homicide. His principal contention is that the shot was fired accidentally. Little, if any, evidence supports that contention.

The defendant and Freda Garrett Flint were married several years prior to 1954. She had previously been married and was the mother of a son, about eleven years of age, by the former marriage. At the time of the homicide, the son was living in the home of his mother and the defendant, near the place of business where the homicide occurred.

There appears no question that defendant and Mrs. Flint quarreled on numerous occasions, and that defendant had previously threatened to 'kill' her, or to 'shoot' her. On the day before the dance defendant and Mrs. Flint had quarreled concerning punishment of her son, and testimony indicated that the reason Mrs. Flint had gone to the races with her son was to prevent such punishment by defendant.

There was considerable testimony offered on behalf of defendant to the effect that during the progress of the dance on the evening of the homicide, defendant appeared to be acting in his usual manner, without appearance of any bad 'mood', and appeared to be 'having a good time' at the dance. There was also substantial evidence to the effect that the quarrels between defendant and his wife occurred only at times when he was drinking intoxicating liquors, and that at other times the relationship between the defendant and Mrs. Flint was that of affectionate respect. Other pertinent facts will appear in discussions of the several assignments of error.

Defendant's first assignment of error is based on his contention that the trial court did not provide 'a panel of twenty prospective jurors free from legal exception'. It is contended that the trial court erred in refusing to excuse from the panel of twenty Oscar Hamrick, and in excusing from the panel Ward Roach.

Oscar Hamrick, on his voir dire, when asked whether he knew anything about the facts in the case, answered, 'Well, I do'. He further stated that he had heard the case discussed; that he was personally acquainted with the defendant and Mrs. Flint; that he was at 'her wake'; and that he had visited in their home three or four times in the year previous to the homicide. He was asked this question: 'Well, now, would it take very much of that evidence to erase from your mind the impressions that you now have as to how this shooting occurred?' His answer was, 'Well, it would'. He further stated, however, that he was not conscious of any bias or prejudice; that he could give the defendant and the State a fair and impartial trial; that he had no opinion as to the guilt or innocence of the defendant; and that he could make his decisions as a juror 'entirely from the evidence'. The juror was thoroughly questioned by counsel and the trial judge. He was peremptorily struck from the panel by defendant.

Ward Roach, on his voir dire, testified to the effect that he was a brother of Frank Roach, who, with his wife and stepdaughter, was subpoenaed in the case; that he believed he would be 'able to go by the evidence in a case like this' without regard to the relationship; and that he had not discussed the case with his brother Frank, his brother's wife, or the stepdaughter.

Careful consideration of the questions presented leads us to the conclusion that the trial court did not commit reversible error, either in refusing to excuse Oscar Hamrick from the panel, or in excusing Ward Roach therefrom....