State v. Garner

• Citation: 124 S.E. 681
• Decision Date: 23 September 1924
• Docket Number: (No. 5107.)
• Court: Supreme Court of West Virginia
• Parties: STATE . v. GARNER.

124 S.E. 681

STATE .
v.
GARNER.

(No. 5107.)

Supreme Court of Appeals of West Virginia.

Sept. 23, 1924.

[124 S.E. 681](Syllabus by the Court.)

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.

MILLER, J. 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...