State v. Garner

Decision Date23 September 1924
Docket Number5107.
Citation124 S.E. 681,97 W.Va. 222
CourtWest Virginia Supreme Court

Submitted September 16, 1924.

Syllabus by the Court.

An instruction to the jury to the effect that malice may be inferred from the act of the accused in drawing a deadly weapon and firing it, resulting in the death of the one towards whom it was presented, and that such act is evidence of a deliberate intent to kill, without reference to any of the extenuating facts and circumstances given in evidence constitutes reversible error.

A bad instruction is not cured by a good one given to the jury, and with which it is in conflict.

Error to Circuit Court, Wetzel County.

Henry Garner was convicted of murder in second degree, and he brings error. Reversed and remanded for new trial.

E. H Yost and Larrick & Lemon, all of New Martinsville, for plaintiff in error.

E. T England, Atty. Gen., and R. Dennis Steed, Asst. Atty. Gen for the State.


Upon an indictment charging him with the murder of Mont Dunham, on the ______ day of July, 1923, defendant was found guilty of murder in the second degree, and the judgment complained of was that he be confined in the state penitentiary for the period of 12 years.

The material evidence adduced on the trial is substantially without conflict. It discloses that the homicide occurred on a Sunday about noon. Defendant and deceased were near neighbors, living in the country, the deceased as a tenant on part of defendant's farm. They had been on friendly terms, except as hereinafter noted, up to within a very few hours of the tragedy. On the morning of the homicide, defendant, at the request of deceased, had assisted him in grinding the sickle belonging to the latter's mowing machine. After grinding it, they went to the place in the field where the mowing machine was located, near the residences of both. When deceased got down to replace the sickle in the machine, he was unable to find the bolt which he had removed in detaching the sickle from the machine, and grew very angry and accused defendant of stealing it, which defendant denied and said to him that it must be near by in the grass where deceased had left it, and proposed to get down and find it, which he did, in the grass a short distance from the place where it had been left. Mrs. Dunham says she went out to where the two men were, and when she arrived on the scene, defendant had in his hand the grass board, and her husband had in his hand a monkey wrench, but that they were not in striking distance of each other, and no blows were struck after she arrived, and that they talked about what they owed each other and other things. Defendant swore that while hunting for the bolt, deceased struck him on the head, producing a lump about the size of a hickory nut, but the evidence does not show that he resented this by any counter blow. Mrs. Dunham says she did not observe the lump on defendant's head. Defendant says that while he was still hunting for the bolt deceased was calling him a liar and accusing him of throwing the bolt away, and that he said to him that he was a "damned son of a bitch and liar," and as he started to arise, deceased hit him with the wrench, which was before Mrs. Dunham came on the scene; that he did not pick up the grass board until after Dunham had hit him with the wrench, and did not then or afterwards attempt to hit him with the board; and that after he replied to Dunham's accusation as stated, Dunham said, "I will fight you any way you want to fight," and afterwards said: "You can run the rest of the Dunhams, but you can't run me." After this altercation, defendant says, there was some disagreement as to where the hay was to be stacked; that deceased said he would stack it right there, defendant wanted it stacked at another point. After these transactions, defendant says he started home; and he is corroborated by Mrs. Dunham, that as he left Dunham said to him, "Whatever you do, you do it in a sneaking way." Defendant went on home, put away his scythe, watered the horses, and then went out into the garden, from where he went up onto the porch and sat or lay down in a swing, when he observed his wife coming up through the gate. On her arrival, she sat down in the swing with him, where they remained for a few minutes before the homicide occurred. Defendant says he told his wife about the trouble with Dunham earlier in the day, over the bolt, and about being struck by deceased with the wrench. Mrs. Garner corroborates her husband as to his having the lump on his head. She had been to church that morning. Both defendant and his wife say they had been on the porch together but a few minutes when they observed Dunham approaching from the public road; that he came out of the lane leading to the house and turned out the road in front of the house to the pasture where he had his horses. They say that, as he was about to pass the house defendant spoke to him in a friendly way, saying: "How are you, Monty?" Defendant says Dunham had a very high temper; would get very angry. According to the evidence it was only about half an hour from the time the two men parted at the mowing machine, until Dunham appeared in front of defendant's house. Defendant, corroborated by his wife, says that when he gave Dunham the friendly salutation, Dunham started for the front gate leading into the yard and said: "I am no better, you damned son of a bitch," and that "he started right toward me;" that at that moment defendant arose, and as Dunham grabbed back toward his hip pocket, he seized his gun lying on the porch and said to Dunham to stay back, or stay out; that he said this two or three times after he started off the porch, and that when Dunham got to the gate, he fired the gun. The evidence shows that the gate was only about 10 feet from the porch of defendant's house; and defendant says when he picked up the gun he stepped back, and that Dunham was coming on with his hand still on his hip pocket, and when he fired he figured that Dunham intended to kill him or do him harm, for he had told him before on that day that he intended to kill him. Mrs. Garner, who was greatly excited, says that she ran down in the yard, held up her hands and implored Dunham to stay out, but without avail. After going down into the yard and...

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