State v. Foley

• Decision Date: 13 November 1945
• Docket Number: 9712.
• Citation: 35 S.E.2d 854,128 W.Va. 166
• Parties: STATE v. FOLEY.
• Court: West Virginia Supreme Court

35 S.E.2d 854

128 W.Va. 166

STATE v. FOLEY.

No. 9712.

Supreme Court of Appeals of West Virginia.

November 13, 1945

Syllabus by the Court.

1. Where, in a trial for murder, allegedly committed with the use of a revolver, the accused voluntarily takes the witness stand in his own behalf, it is reversible error for the trial court, over objection of counsel, to permit counsel for the prosecution to inquire of and require the accused to answer whether he had a license to carry a pistol at the time the alleged killing took place.

2. Though the privilege, afforded by West Virginia Constitution Article III, Section 5, of not answering a question addressed to a witness, which, if answered, would tend to subject the witness to a criminal or penal liability, is personal to the witness, nevertheless it is reversible error for the trial court, over objection of counsel for the accused, to require the question to be answered where the answer sought to be elicited is not relevant to the issue of defendant's guilt or innocence and is designed to prejudice the jury against the defendant.

3. 'Where [in a trial by jury] there is competent evidence tending to support a pertinent theory in the case, it is the duty of the trial court to give an instruction presenting such theory when requested so to do.' State v. Alie, 82 W.Va. 601, Pt. 1, Syl. 96 S.E. 1011.

4. Where, in a trial for murder, there is competent evidence tending to show that the accused believed, and had reasonable grounds to believe, that he was in danger of losing his life or suffering great bodily harm at the hands of several assailants acting together, he may defend against any or all of said assailants, and it is reversible error for the trial court to refuse to instruct the jury to that effect.

G C. Belknap, of Sutton, and D. L. Salisbury, M. E. Boiarsky, and T. C. Townsend, all of Charleston, for plaintiff in error.

Ira J. Partlow, Atty. Gen., and Ralph M. Hiner, Asst. Atty. Gen., for defenant in error.

RILEY Judge.

In the case of State of West Virginia against E. H. Foley from the Circuit Court of Clay County, the defendant and Ranson Kirk were jointly indicted for the murder of Joseph Groves in Clay County, West Virginia, on March 1, 1944. The defendants each having demanded a separate trial, the State elected to try Foley first, and he was tried and convicted of voluntary manslaughter and sentenced to the penitentiary. To a judgment of sentence this writ of error is prosecuted.

On March 1, 1944, defendant Foley shot and killed Joe Groves at Widen, West Virginia, with a 32 caliber Smith and Wesson revolver. The sole defense interposed was that the killing was done in self-defense.

Foley and Kirk were employed in the months of February and March, 1944, for the purpose of organizing for the United Mine Workers of America the employees of Elk River Coal and Lumber Company at Widen. On the morning of February 28, 1944, Foley, in pursuit of his employment drove to Widen. He was accompanied by Byrne Wilson and unarmed. He testified that previously on February 23, 1944, when he was driving into Widen, Elmer Groves, driving an automobile in the opposite direction, stopped Foley's car and inquired of him if he was 'that G_____ damned organizer,' and warned: 'I am telling you, by G_____, to stay out of here and don't be here when I come back.' Elmer testified that he did not know Foley until he returned to Widen on February 28, 1944, after a visit. Upon arriving at Widen early in the afternoon, Foley went into the Y.M.C.A. building, where Elmer Groves and his father were seated.

Elmer Groves testified that on February 28 Foley had 'backed his car out in the road and just brushed my pants leg'; that against his father's advice he approached Foley to ask him about the car incident; that Foley spit on the floor and when Elmer told him to clean it up 'said something about a damned fool'; whereupon Elmer Groves grabbed Foley, slapped him, followed him out of the building, and caught him somewhere between the door and the Foley car parked a short distance away. He denies that he choked Foley, but says that when he grabbed Foley by the collar, the latter fell down 'playing possum' and arose and went to his car when someone suggested that a doctor be called. The record, however, in our opinion, does not sustain Elmer Groves' version of this incident. Foley testified, and in many particulars he is fully substantiated in this record, that while he was in the 'Y' talking with Theodore Given, Elmer Groves came up to him from behind, grabbed him by the collar and said 'What the G_____ damned hell are you doing back here? I thought I told you to stay out of here'; that Elmer told him to take off his glasses, reached up and caught the glasses, jostled defendant, and when defendant had partly broken loose from him, knocked him down on the floor, causing his jaw to be cut almost through, so that it bled until about seven o'clock that evening; and that he got to his feet and went out the door, followed by Elmer and his father. He testified that Elmer kicked him as he went out the door; that he caught defendant near the back end of his car and hit him once or twice; that when defendant broke loose he got about half way to the door of his car, and that Joe Groves was 'following, trailing right along'; that when defendant got about half way to the car door Elmer caught him again, choked him, pushed him so that he fell to the ground on his back, where he lay for some time in an unconscious condition. After Foley regained consciousness, so he testified, he went to his car, where Joe Groves, who had followed him, told him to 'get the hell out of there.' Upon informing Groves that he could not do so because he had left his keys in the building, Groves went back into the building and returned with Foley's keys and glasses, and said, 'Now, you get your G_____ damned a_____ out of here and stay to hell out of here. If you come back in here bring an ambulance with you or a hearse.' Defendant is corroborated in this latter incident by the witness, Tom Radcliff. Defendant says as he was talking, Joe Groves pulled back his leather jacket and witness could see the butt of a gun. Virgil Grogg testified that in the 'Y,' Elmer grabbed Foley, who said, 'Well, wait a minute. What is this?' Icie Frame, a clerk in the Y.M.C.A., testified that as Foley was walking through Elmer stepped up to him, took him by the shoulder, and asked him, 'what he was doing there trying to organize the union,' jerked his glasses off, shoved him back next to the pool tables, while Foley told him he did not want to have any trouble with him, and then followed Foley out of the door. The witness Shannon Gray first saw Foley and Groves on February 28, as they were scuffling outside the building; that Foley got loose and started to run; that Joe Groves told Elmer not to let Foley get away; that after this admonition Elmer caught Foley again as he was running up to his car, put him on the ground; and that after Foley got up, he went to his car, followed by Joe Groves.

After the encounter on February 28, Foley exhibited physical evidence of his treatment at the hands of Elmer Groves. Virgil Grogg testified that when Foley went to witness' home on the evening of February 28, his clothes were torn and dirty, and he had a scar on one side of his face. Charles C. Gressang, General Superintendent of Elk River Coal and Lumber Company, who, on the evening of February 29, 1944, had attended a meeting in Charleston at which representatives of the United Mine Workers of America, including Foley and Ranson Kirk, an independent union of the coal and lumber company's employees, and a representative of the National Labor Relations Board were present, relative to the holding of an election by the mine employees at Widen to determine which of the two competing organizations, if either, would be elected as the collective bargaining agency, testified that on that occasion he noticed a 'pretty good sized' red mark on Foley's face. Kirk testified that at the meeting he noticed that Foley had a 'pretty bad swollen jaw,' and the witness H. O. Murphy noticed blood on Foley's face as he was leaving Widen on February 28.

On the question whether Elmer Groves was able to inflict injury on Foley, it may be noted that Foley was forty-eight years of age and weighed one hundred sixty-three pounds, and Elmer Groves, who had recently been discharged from the United States Army, was twenty-two years of age, about six feet tall, and weighed, according to the variant testimony, from one hundred seventy-seven to two hundred ten pounds.

On February 29, 1944, Elmer Groves was arraigned, pleaded guilty, and was fined before Lee Wilson, a Justice of the Peace in Clay County, on the charge that he 'did unlawfully assault and beat him, the said E. H. Foley.'

Various witnesses testified concerning Joe Groves' activities at Widen on February 28 and 29. Virgil Grogg testified that when Joe Groves asked Icie Frame for Foley's keys and glasses, he said, 'Yes, he [Foley] promised to leave town.' The witnesses Grogg, Theodore Given, William Matheny, and others for the defense, as well as the State, testified that Joe Groves followed Elmer as the latter was pursuing Foley out of the 'Y.' Shannon Gray testified that he first saw Foley and Groves outside the building on February 28 scuffling; that when Foley got loose Joe Groves told Elmer not to let him get away; that Joe Groves did not do anything to stop the fight, and that when Foley went to his car Joe Groves followed him. Tom Radcliff testified that when Foley was lying on the ground after the encounter on February 28, Joe Groves walked up and said, 'Don't a damned man interfere'; that when Foley broke loose and...