State v. G. C. McMillion, (No. 5771)

CourtSupreme Court of West Virginia
Writing for the CourtWOODS, J.
Citation104 W.Va. 1
PartiesState v. G. C. McMillion
Docket Number(No. 5771)
Decision Date31 May 1927

104 W.Va. 1

State
v.
G. C. McMillion

(No. 5771)

Supreme Court of Appeals of West Virginia.

Submitted April 27, 1927.
Decided May 31, 1927.


[104 W.Va. 1]

1.Indictment and Information Murder Indictment in Statutory Form Omitting Date of Offense, Shown to be Prior to Its Return Date of Which Court Records Showed, Held Good on Motion to quash (Code, c. 144, § 1, c. 158, § 10).

An indictment for murder, drawn in accordance with the form prescribed by statute (Code, Ch. 144, § 1), alleging that the crime was committed "on the day of September, 1925," and shown by the records of the court to have been returned on the 16th day of September, 1925, and its language plainly importing that the offense was committed prior to its finding, is good on motion to quash. (p. 7.)

2.Jury Generally, Membership in Association Not Shown to be Interested in Prosecution Does Not Disqualify Juror; in Prosecution for Murder, Juror's Membership in Ku Klux Klan, Not Shown to be Interested in Prosecution, Held Not to Disqualify Him (Code, c. 116, § 17).

As a general rule it is no ground of challenge for cause, and does not disqualify a juror, simply because he belongs to some association or order, in the absence of a showing that the association or order is in some way interested in or connected with the prosecution of the case, where said juror otherwise qualifies upon the voir dire examination to serve as such. (p. 8.)

[104 W.Va. 2]

3.Criminal Law Jury Qualification of Jurors is Question of Mixed Law and Fact, on Which Court's Finding Will Not be Set Aside Except for Clear Error; in Prosecution for Murder, Refusal to Sustain Challenges to Jurors Because Members of Ku Klux Klan Held Not Error (Code, c. 116, § 17).

The question presented as to the qualification of jurors is one of mixed law and fact, and the finding of the trial court upon that issue will not be set aside unless the error is plainly manifest. (p. 9.)

4.Same; Homicide Generally if Court Errs in Instructions as to Higher Degree of Crime, Defendant Cannot Complain of Conviction of Lower Degree as to Which Instruction Was Proper; Defendant Convicted of Second Degree Murder, as to Which Instruction Was Correct, May Not Complain of Alleged Error in Instruction on First Degree Murder.

The general rule is that, where a crime is divided into degrees, if the court commits error in instructing the jury as to the higher degree of such crime, and they return a verdict of guilty of a lower degree as to which they were properly instructed, the defendant cannot complain. (p. 9.)

5.Homicide Verdict Adverse to Defense of Self-Defense Will Not be Set Aside Unless Manifestly Against Weight of Evidence; Evidence Held to Sustain Conviction of Second Degree Murder as Against Plea of Self-Defense.

It is peculiarly within the province of the jury to weigh the evidence upon the question of self-defense, and the verdict of a jury adverse to that defense will not be set aside unless it is manifestly against the weight of the evidence. (p. 10.)

6.Same On Plea of Self-Defense, Burden of Showing Imminence of Danger Rests on Defendant Accused of Homicide; no Apprehension of Danger Previously Entertained Justifies Homicide, But Such Apprehension Must be Existing at Time of Firing Fatal Shot.

Under his plea of self-defense, the burden of showing the imminency of the danger rests upon the defendant. No apprehension of danger previously entertained will justify the commission of the homicide; it must be an apprehension existing at the time the defendant fired the fatal shot. (p. 10.)

Hatcher, President, absent.

Error to Circuit Court. Fayette County.

[104 W.Va. 3]

(G. C. McMillion was convicted of second degree murder, and he brings error.

Affirmed.

Harold W. Houston and W. B. Bennett, for plaintiff in error.

Howard B. Lee, Attorney General, and B. A. Blessing, Assistant Attorney General, for the State.

Woods. Judge:

G. C. McMillion was tried in the circuit court of Fayette county for the murder of one Estel Hatcher. He was found guilty of second degree murder, and sentenced to a term of eight years in the penitentiary, and now brings error to this court.

From the case made by the State, it appears that Goff Odell, a State prohibition officer, had secured a search and seizure warrant from C. M. Evans, a justice of Fayette county, for a Studebaker automobile operated by one Pat Flint, who, Odell was informed, was operating a still and disposing of intoxicating liquors in the neighborhood of John H. Hatcher, the father of the deceased. This officer informed the elder Hatcher that he would notify him of the time when he would come into the neighborhood to execute the warrant, and requested Hatcher to have some local officer present to assist him. Hatcher, who was interested in apprehending the bootlegger, upon the receipt of a letter from Officer Odell to the effect that the latter would go to Point Lookout, where the main road is intersected by the Harris road, and watch for the car operated by Flint, on the evening of September 10, 1925 (the date of the homicide), arranged with John D. Skaggs, a constable of the county, to go with him to meet Odell for the purpose of watching for and apprehending Flint. So, on the appointed evening, Hatcher and his son, Estel, accompanied by the constable, drove to the point designated, which is between two and three miles from the Hatcher home and store. Upon reaching the designated spot, Hatcher drove his car a short distance out the Harris road and parked it. Officer Odell, Constable Skaggs, both armed, and young

[104 W.Va. 4]

Hatcher, who was unarmed, stationed themselves along the side of the main road near its intersection with the Harris road. They watched for a car driven by Flint. Two cars were stopped, but found not to he the one wanted. They claim that they were in this position when the defendant's car, hereinafter referred to, started forward, after it had been passed by a certain car which had previously been stalled. As defendant's car approached the place where the officers were stationed, Bstel Hatcher remarked, "There is the car!" meaning Flint's car, and officer Skaggs called, "Halt!" Whereupon defendant began to shoot from the side of his car. Young Hatcher immediately fell, fatally wounded by three bullets. The officers then returned the fire and the defendant's car speeded away. Young Hatcher was taken to the Oak Hill Hospital, where he died the following day.

The defendant relied on self-defense. To support his claim that he believed himself to be in imminent danger of death or great bodily harm at the hands of a mob at the time he fired the fatal shot, and that such shot was fired in good faith for the sole purpose of protecting his life and limb, he introduced a typewritten notice, signed "K. K. K.," which he states was served on him at his home one night about four months prior to the homicide, by eighty hooded men. This notice, purporting to have been given at the instance of six thousand determined Klansmen, directed that he resign his office as justice of the peace and leave the county within thirty days. This alleged demonstration occurred a few days after a colored man, charged with a grave offense against a white woman, had escaped from the custody of the defendant, while the latter was conveying him to the county jail at Fayetteville. However, the defendant in his testimony said that this hostile demonstration was a political scheme to drive him out of the taxi business, and that the escape of the colored man was taken as a pretext. On the evening of the homicide, defendant shows that he was returning to his home at Winona from Oak Hill, where he had gone that afternoon to attend Squire Woods' court, where his son, Richard, and Ernest Horrocks were wanted for some road violation. He was accompanied by his son Richard, Caleb Horrocks, Ernest Horrocks

[104 W.Va. 5]

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54 practice notes
  • State v. Ashcraft, No. 15822
    • United States
    • Supreme Court of West Virginia
    • 10 November 1983
    ...neither formed nor expressed any opinion, who are free from bias or prejudice, and stand indifferent in the case." State v. McMillion, 104 W.Va. 1, 8, 138 S.E. 732, 735 The traditional means for vindicating this right is examination of prospective jurors on their voir dire, i.e. on their oa......
  • State v. White, No. 11–1336.
    • United States
    • Supreme Court of West Virginia
    • 7 June 2013
    ...to that defense will not be set aside unless it is manifestly against the weight of the evidence.’ Syllabus point 5, State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927), [ overruled on other grounds, State v. Harden, 223 W.Va. 796, 679 S.E.2d 628 (2009) ].” Syl. Pt. 2, State v. Whittaker, ......
  • State v. Miller, No. 23155
    • United States
    • Supreme Court of West Virginia
    • 14 June 1996
    ...juror's actual prejudice or bias is shown. State v. Ashcraft, 172 W.Va. 640, 647, 309 S.E.2d 600, 607 (1983), quoting State v. McMillion, 104 W.Va. 1, 8, 138 S.E. 732, 735 (1927). A trial judge "has a serious duty to determine the question of actual bias[.]" See Dennis v. United States, 339......
  • State v. Harlow, No. 10436
    • United States
    • Supreme Court of West Virginia
    • 24 June 1952
    ...was on the defendant to establish, by a preponderance of the evidence, that the shooting was done in self defense. State v. McMillion, 104 W.Va. 1, 138 S.E. Upon careful examination of all the evidence, we reach the conclusion that the verdict returned by the jury is [137 W.Va. 263] amply s......
  • Request a trial to view additional results
54 cases
  • State v. Ashcraft, No. 15822
    • United States
    • Supreme Court of West Virginia
    • 10 November 1983
    ...neither formed nor expressed any opinion, who are free from bias or prejudice, and stand indifferent in the case." State v. McMillion, 104 W.Va. 1, 8, 138 S.E. 732, 735 The traditional means for vindicating this right is examination of prospective jurors on their voir dire, i.e. on their oa......
  • State v. White, No. 11–1336.
    • United States
    • Supreme Court of West Virginia
    • 7 June 2013
    ...to that defense will not be set aside unless it is manifestly against the weight of the evidence.’ Syllabus point 5, State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927), [ overruled on other grounds, State v. Harden, 223 W.Va. 796, 679 S.E.2d 628 (2009) ].” Syl. Pt. 2, State v. Whittaker, ......
  • State v. Miller, No. 23155
    • United States
    • Supreme Court of West Virginia
    • 14 June 1996
    ...juror's actual prejudice or bias is shown. State v. Ashcraft, 172 W.Va. 640, 647, 309 S.E.2d 600, 607 (1983), quoting State v. McMillion, 104 W.Va. 1, 8, 138 S.E. 732, 735 (1927). A trial judge "has a serious duty to determine the question of actual bias[.]" See Dennis v. United States, 339......
  • State v. Harlow, No. 10436
    • United States
    • Supreme Court of West Virginia
    • 24 June 1952
    ...was on the defendant to establish, by a preponderance of the evidence, that the shooting was done in self defense. State v. McMillion, 104 W.Va. 1, 138 S.E. Upon careful examination of all the evidence, we reach the conclusion that the verdict returned by the jury is [137 W.Va. 263] amply s......
  • Request a trial to view additional results

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