State v. Gunnoe
| Decision Date | 22 September 1914 |
| Citation | 83 S.E. 64,74 W.Va. 741 |
| Parties | STATE v. GUNNOE. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
In case of homicide caused, in a physical struggle, by strangulation according to expert and uncontradicted testimony, it is competent for a physician, who at the autopsy conducted by him on the body of deceased shortly after death observed a bruise or scratch on the face of accused, then present, to express, upon the trial, the opinion that such wound was a fresh break in the skin, had fresh blood in it, and was caused by a finger nail.
An instruction on a trial for murder, meant merely to define reasonable doubt, and saying, "Beyond all reasonable doubt" does not mean "beyond all possible doubt," and that "what jurors believe as men they should believe as jurors," is not erroneous, warranting reversal, merely because it omits an express reference to the evidence.
Ordinarily it is not reversible error for a prosecuting attorney, in argument before the jury, to refer to failure of accused to examine material witnesses, summoned in his behalf, for the purpose of explaining incriminating circumstances disclosed by the evidence for the state. Such remarks are not within the inhibition of section 19, c. 152, Code 1913 (sec. 5476).
A prosecuting attorney may, in the exercise of reasonable discretion, refuse to call as a witness one accused of though not indicted for, the same offense, if he believes the testimony of such witness, if given, would tend to defeat and not promote, the ends of justice.
While circumstantial evidence is always to be scanned with great caution, and to sustain a verdict of murder must be of such character and tendency to produce a moral conviction of guilt beyond reasonable doubt, it will be held sufficient when as to time, place, motive, means, and conduct the circumstances concur in pointing out the accused as the perpetrator of the crime; the test of sufficiency being that the facts proved can reasonably be accounted for only on the hypothesis of guilt, are consistent therewith, and point to it so clearly as to satisfy the jury beyond reasonable doubt.
Error to Circuit Court, Kanawha County.
Willard Gunnoe was convicted of murder in the second degree, and brings error. Affirmed.
Stone & Wolfe, of Ripley, and B. T. Clayton, J. Howard Hundley, and M. F. Matheny, all of Charleston, for plaintiff in error.
A. A Lilly, Atty. Gen., and John B. Morrison and J. E. Brown Asst. Attys. Gen., for the State.
Having been adjudged guilty and sentenced to confinement in the penitentiary for murder in the second degree, upon evidence wholly circumstantial, Willard Gunnoe seeks reversal upon writ of error.
By the first bill of exceptions, defendant invites consideration of a ruling upon the refusal of the prosecuting attorney to permit his counsel to interview Ocie Mullins, a sister of the deceased, and who then was, and until after the indictment and conviction of Gunnoe remained, in jail, jointly accused with defendant of the same offense. This assignment, however, we need not discuss, because subsequently, and before the trial, counsel did interview her, and, although summoned, she was not examined as a witness upon the trial.
By another assignment, defendant challenges the right of a witness examined as an expert, who performed or assisted in performing an autopsy upon the body of deceased, to state an opinion as to the nature, character, and cause of a bruise or scratch on defendant's face, which he examined or observed on that occasion, and to say it was a fresh break of the skin, that it had in it fresh blood, and that in his opinion the break in the skin was caused by a finger nail. Other witnesses observed the same marks and expressed the same opinion without objection or exception. We think it entirely competent for a physician, the practice of whose profession necessitates frequent examinations of wounds upon human bodies, to express an opinion on the appearance of wounds observed or examined by him. The injured part could not, for obvious reasons, be produced upon the trial in the condition in which it at first appeared. Without such evidence, the jury could not form any definite conclusion as to its nature, cause, or character. State v. Welch, 36 W.Va. 690, 15 S.E. 419; State v. Henry, 51 W.Va. 283, 41 S.E. 439; Overby v. Railway Co., 37 W.Va. 524, 16 S.E. 813; Kunst v. Grafton, 67 W.Va. 20, 67 S.E. 74, 26 L.R.A. (N. S.) 1201. In the Musgrave Case, 43 W.Va. 672, 28 S.E. 813, on which plaintiff relies, the evidence deemed inadmissible, and for which the case was in part reversed, was given by a nonexpert witness. We therefore do not deem the ruling on the admissibility of the evidence complained of prejudicial to the accused.
By another assignment, accused complains of two instructions given on behalf of the state. In substance, the first explains what is meant by reasonable doubt, saying, "Beyond all reasonable doubt" does not mean "beyond all possible doubt," and that "what jurors believe as men they should believe as jurors." The defect suggested is that the instruction makes no reference to the evidence, contrary to the holding in Britton v. Oil Co., 81 S.E. 525. The syllabus says: "Instructions requiring the jury to pass upon issues of fact should not omit reference to the evidence." But the instruction under review here does not purport to advise upon any such issue. It merely defines reasonable doubt--the open sesame to which resort is frequently had to acquit persons charged with crime. In part, it accords with an instruction approved in State v. Ice, 34 W.Va. 244, 12 S.E. 695, the difference being that the latter adds, "But proof to a moral certainty, rather than to an absolute certainty," instead of the concluding phrase of the state's instruction given in this case. But, substantially as given, the instruction has been approved in State v. Bickle, 53 W.Va. 599, 45 S.E. 917, as has also been the second instruction in State v. Sheppard, 49 W.Va. 585, 39 S.E. 676; the two, with but an immaterial change, being in the same language.
Defendant, by his first instruction, refused, challenges the sufficiency of the evidence, discussion of which is for the present reserved. Except 1, 2, and 6, the trial court gave all the instructions asked by defendant. Because of the substantial sameness of instructions 2, 6, and 7, the last of which the court gave, we think the refusal to give 2 and 6 was not prejudicial. Besides, the language of 6 is ambiguous, and, moreover, as to some of its phrases, is without any evidence on which to base it. There was no evidence tending to show commission of the crime by any person other than the accused. The absence of any argument touching 2 and 6 lends color to the view that both were in fact given, because, as appears from the record, they were indorsed as given, although a bill of exceptions says they were not given.
This brings us to a consideration of the further objection arising out of the argument for the state and for the accused, each of whom sought to impress the jury with inferences to be drawn from the failure of the other to call Ocie Mullins as a witness. Although summoned, neither of them ventured to examine her. No doubt, she could have furnished information valuable or fatal to the success of the prosecution--which we do not know. And again counsel for the state said: "There are witnesses now in the courtroom for the defense who saw Willard Gunnoe the day before" the crime, not put on the stand to show, as Gunnoe contends, that the scratch alluded to was on his face the day before his wife's death. The statute (section 19, c. 152, Code [sec. 5476]) upon which the objection is based, changing the common-law rule as to the privilege of the accused to testify in his own behalf, provides only that failure to make such request shall not create any impression against him, nor shall any reference be made to nor comment upon such failure by any one during the progress of the trial in the hearing of the jury. It is apparent that no such remarks or comments were made; and we cannot perceive in what respect, if any, defendant was prejudiced by the argument of counsel. For comments of the character first indicated have been held either proper, or at least not so improper as to require a reversal. State v. Ice, supra; State v. Parker, 172 Mo. 192, 72 S.W. 650; Richardson v. State, 44 Tex. Cr. R. 211, 70 S.W. 320. Comment on the failure of accused to explain incriminating circumstances, as his flight from the state, or that he had not accounted for his whereabouts at the time of the homicide, is not objectionable as referring to failure of accused to testify. State v. Smokalem, 37 Wash. 91, 79 P. 603; Sutton v. Com., 85 Va. 128, 7 S.E. 323; Robinson v. Woodford, 37 W.Va. 377, 16 S.E. 602.
If from the hostile attitude of a witness, or his probable connection with the commission of the crime charged against the accused unfavorable testimony may reasonably be anticipated, the state may, in the interest of public justice, refuse to call him to testify upon the trial. McQuire v. State, 2 O. C. D. 318. And, upon a like failure of the accused, an argument, based upon and limited solely to such failure, is not a comment within the inhibition of the statute. State v. Sanderson, 83 Vt. 351, 75 A. 961; Lam Yee v. State, 132 Wis. 527, 112 N.W. 425. It has been held otherwise, however, where it was argued that the guilt of the accused was to be inferred from such failure. State v. Fitzgerald, 68 Vt. 125, 34 A. 429; Blackman v. State, 78 Ga. 592, 3 S.E. 418. And likewise where comments unfavorable to accused are made as to what such witness would probably state if examined. Graves v. United States, 150 U.S. 118, 14 S.Ct....
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