State v. Graham

• Decision Date: 22 May 1923
• Docket Number: 4684.
• Parties: STATE v. GRAHAM.
• Court: West Virginia Supreme Court

117 S.E. 699

94 W.Va. 67

STATE v. GRAHAM.

No. 4684.

Supreme Court of Appeals of West Virginia.

May 22, 1923

Submitted May 15, 1923.

Syllabus by the Court.

Dying declarations are admissible to prove the fact of the killing who was the murderer, and such other facts and circumstances as immediately attend the homicide and form part of the res gestæ. They may extend to the entire circumstances of the fatal occurrence but should not include narratives of matters not immediately connected with it.

The dying declarant does not become a general witness; and although, were he alive and sworn as a witness in the case he might testify as to prior transactions, separate and distinct from and forming no part of the res gestæ, such as prior threats made by the defendant against him, or prior quarrels tending to show defendant's ill will toward the declarant, yet such statements, when contained in a dying declaration, are inadmissible upon the trial of the defendant for declarant's death, because such facts are not a part of the res gestæ.

Upon a trial for murder, where the defense is that the killing was accidental, it is error to give an instruction in the following form: "The court instructs the jury that, if they believe from the evidence in this case that deceased came to his death by a pistol shot wound at the hands of the defendant, the presumption is that it is murder in the second degree. If the state would elevate it to murder in the first degree it must establish the characteristics of that crime; and if the prisoner would reduce it to manslaughter, the burden of proof rests upon the prisoner"--because it leaves the matter in doubt whether the accused may be found guilty of a lesser offense than manslaughter or whether he may be acquitted; there being no other instructions given substantially covering this phase of the case.

Point 2 of the syllabus in State v. Hobbs, 37 W.Va. 812, 17 S.E. 380, approved.

Error to Circuit Court, Wyoming County.

Luke Graham was convicted of voluntary manslaughter, and he brings error. Reversed and remanded.

R. E Hughes, of Charleston, and W. S. Thompson, of Mullins, for plaintiff in error.

E. T. England, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

MEREDITH J.

Defendant was convicted of voluntary manslaughter upon an indictment charging him with the murder of John Graham, and was sentenced to the penitentiary for 5 years. He assigns various errors, but two of which we deem material.

Defendant and the deceased were cousins, about 21 years of age, living in the same community in Wyoming county. About 5:30 in the afternoon of May 7, 1921, Lonnie Blankenship, Ellis McKinney, Burdine Reed, and John Graham, the deceased, all young men, were lying on the ground on the left-hand side of the road about 130 yards below the store of W. P. McKinney. Defendant, Luke Graham, and his brother, Jesse, came down from the store on horseback. They were going fast; defendant was riding a two year old colt. They were on their way to Herndon. As they came to the point where the young men were lying, defendant's horse passed some distance before it could be stopped, but as they came by John Graham holloed, "Hello Luke." Upon hearing John, they stopped, turned around, and rode back to where John and his associates were. The state's witnesses do not agree exactly as to what was there said, but it appears that the deceased asked Luke where he was going, and he told deceased he was going to Herndon, and that he was taking his revolver along with him. He then withdrew it from its holster, whereupon deceased said, "I believe I know that gun," or "I owned that gun." To this the defendant replied, "No, you don't," or "No, you never; I got this gun off of a punch board at Rodelland; it hasn't been shot but seven times." He then fired one shot into the ground in the road, some four or five feet from where deceased was lying. Whether this was at the instance of the deceased is not clear. This caused defendant's horse to jump. He had the gun in his right hand and on the side next to deceased. As he tried to right or check his horse, his gun was discharged a second time. This shot passed through the lower left vest pocket of deceased, entering his body, and coming out near his spine. John holloed, "Luke, you have shot me; you have killed me; I know you didn't aim to do it, but you have killed me." Luke replied, "I surely haven't shot you, Johnnie." Deceased replied, "You have shot me, but you done it accidentally." Defendant dismounted, went over to where John lay, drew his coat aside, and, seeing that John was shot, began to cry. Some one went for a doctor, and defendant put Lonnie Blankenship on his colt and sent him after a minister. Defendant remained there until a minister came. They removed John to the house of W. P. McKinney nearby, and the next day he was taken to a hospital at Bluefield, where he died from the wound on May 13th. All the eyewitnesses, and there are quite a number of them, agree that there was no quarrel between the defendant and deceased. Defendant claims that the shooting was purely accidental. The State claims that it was premeditated, and to show this introduced a purported dying declaration of deceased, made to his sister at the hospital on Tuesday preceding the Friday on which he died. As the main controversy here is over this declaration, we copy her testimony in that respect in full. It reads:

"He told me--I asked him several times if Luke was mad at him, and he said, 'Nannie, I am going to tell you why he killed me,' he says, 'for fear I leave the impression on you and my folks that I have wronged him secretly.' He said he had come to him twice in the past month, or maybe a little longer time, and he asked him to help him make whisky, and that he refused, and that he cursed him and asked him his reason, and that he told him for one reason more than anything in the world, that he didn't want to leave a burden like that on his father and mother and for another that he had made a resolution in his mind that he would never do a thing like that as long as he lived, and that as long as he had money or whisky he was willing to give it to him, but that he wouldn't help him make it, and that he cursed him and asked him if he thought he was too good to, and he told him, 'No, not for that reason;' and he said, 'That is why he killed me, and isn't it an awful thing for a man to lay down and die over;' and he said, 'That is what I am doing.' "

Defendant objected to the introduction of this statement, but his objection was overruled and he excepted. Some six separate grounds are urged against it, but we deem it necessary to discuss but one. We may assume that a proper foundation was laid for its introduction, though this is denied by defendant's counsel; the real question is whether the declaration, considering it from its...