State v. Galford

• Court: Supreme Court of West Virginia
• Citation: 105 S.E. 237
• Decision Date: 23 November 1920
• Docket Number: (No. 4118.)
• Parties: STATE. v. GALFORD.

105 S.E. 237

STATE.
v.
GALFORD.

(No. 4118.)

Supreme Court of Appeals of West Virginia.

Nov. 23, 1920.

[105 S.E. 237](Syllabus by the Court.)

Error to Circuit Court, Pocahontas County.

B. L. Galford was convicted of murder in the second degree, and he brings error. Reversed, verdict set aside, and case remanded for a new trial.

Roscoe H. Brunstetter, of Pittsburg, Pa., N. C. McNeil, of Marlinton, and A. M. Belcher, of Charleston, for plaintiff in error.

E. T. England, Atty. Gen., and Chas. Ritchie, Asst. Atty. Gen., for the State.

LYNCH, J. To reverse the judgment of conviction for murder in the second degree and confinement in the penitentiary for a period of 15 years, defendant B. L. Galford prosecutes this writ of error. Besides formal motions for a new trial and in arrest of judgment, he assigns as erroneous rulings on instructions, admission of evidence and duration of imprisonment.

Defendant admits the homicide charged in the indictment, and seeks to exonerate himself from responsibility for infliction of the fatal wound upon the theory that it resulted, not from an intention on his part to commit a felony or inflict bodily injury upon George Duncan, the deceased, but from the accidental discharge of a revolver in his possession, as police officer of the town of Marlinton, while they were engaged in a combat in which, defendant says, Duncan was the aggressor, and no witness contradicts him in this particular.

Until October 7, 1919, the town sergeant was the only officer charged with the duty of maintaining order and preventing reckless operation of automobiles and suppressing immoral conduct on the public streets and in places of common resort in the town of Marlinton. As other duties may have required him to devote all or the greater part of his activities to their performance, and did not permit him to police the town in the nighttime, when such practices prevailed, residents of the town and particularly members of the board of trade urged upon the municipal authorities the necessity for additional police protection against injury by automobiles and flagrant immorality then apparently predominant in the municipality. In response to this appeal the authorities solicited and secured the services of Galford, and assigned to him the duty of policing the streets and public places of the town between the hours of 2 o'clock in the afternoon and a like hour in the morning of each day of the week, and later, if in his judgment the circumstances and conditions made the service necessary.

Suspecting the complicity of Duncan, a husband and father, in illicit sexual lewdness, and seeing him engaged on the streets in what Galford supposed was an effort to attract the attention of a certain woman, by casting gravel or other like substance

[105 S.E. 238]

against the wall or windows of the room or building occupied by her, he approached him, and, after some conversation too vulgar and profane to be detailed, admonished him of the impropriety of the conduct, and advised him to return to his home. In this admonition and advice Duncan seemed to acquiesce without objection or protest, and immediately acted as if his intention was to follow the direction so given. Whether he did or did not go to his residence does not appear. If he did, it was only for a moment, as he soon returned to the main thorofares of the town, and in the vicinity of the residence where Galford first saw him. Duncan frequently passed and repassed defendant while the latter was performing the duties allotted to him, and later entered the First National Bank building, ascended the stairway leading to the second floor, and shortly afterwards returned and stood on the steps of the building, where he and Galford met and there engaged in a combat, in which Duncan received the gunshot wound, from which he died almost instantly.

No one but Galford knows which was the aggressor or how the revolver was discharged. No other witness offers any plausible reason or explanation for the assault or the manner of inflicting the wound, except that the instrument was the revolver Galford was authorized to carry, and did carry at that time. Duncan did not have a revolver or other like dangerous weapon, though Galford swears he supposed he had armed himself after the first conversation. From the time the participants first met near the residence or room of the woman referred to until engaged in the combat about 11 o'clock at night, no other conversation was had between them, and prior to the combat there was between them not the slightest disagreement, estrangement, or enmity, so far as the evidence shows. They were friends, and their friendship theretofore was without interruption at any time or for any cause, so Galford says without contradiction. If there was cause to excite animosity on the part of Duncan towards defendant, that cause is traceable only to their first interview, and its effect on his mental attitude may be presumed from a remark made by him to Clyde Evans only a few moments before the conflict, when, after asking the latter if he had seen Galford, Duncan said Galford "had been following him around that night, and that he was going to slap him if he didn't quit following him and laughed and walked off."

The state introduced and examined numerous witnesses, but the testimony of only three, in addition to that given by Galford, has any material bearing or significance as to the manner in which the injury that caused death was inflicted, and none of them saw how it occurred or happened. These witnesses were Johnson, the janitor of the bank building before which the combat oc curred, who during the whole occurrence was sitting in a chair in the basement of the building where he slept at night, Lightner and McAllister, who jointly occupied a second story room directly across a 40-foot street, none of whom saw the fight at any time while it progressed, or knew how it began, or who was the aggressor, how the wound was inflicted, or the provocation that produced it, until about the time, or after, the revolver was discharged, as their testimony discloses.

Though incoherent, Johnson's testimony, when properly understood, in substance and effect is: That while in the basement he heard some one up the street a considerable distance say: "By G-——d, if I come down;" and he did come down towards the house; and about the same time Duncan reached the...