State v. Gunter
| Citation | 17 S.E.2d 46,123 W.Va. 569 |
| Decision Date | 14 October 1941 |
| Docket Number | 9165. |
| Parties | STATE v. GUNTER. |
| Court | Supreme Court of West Virginia |
Walter G. Burton, of Princeton, and Sanders & Day, of Bluefield for plaintiff in error.
Clarence W. Meadows, Atty. Gen., Kenneth E. Hines, Asst. Atty. Gen and R. D. Bailey, of Pineville, for defendant in error.
KENNA President.
Hobart Gunter was convicted of murder in the second degree and the Circuit Court of Wyoming County, by an order entered July 23 1940, sentenced him to confinement in the penitentiary for the indeterminate term as provided by law for murder in the second degree. There are six grounds of assigned error, the first of which is that the verdict is contrary to the law and the evidence in that there is no showing of fact that would uphold a finding that the killing was done maliciously. Since the testimony concerning the actual occurrence is in irreconcilable conflict, it is probably better to recount first the admitted incidents leading up to the violent death of William Leslie Pack at Oceana at about nine thirty on Saturday evening, October 28 1939.
Pack was a young man in his early twenties, and on the afternoon of October twenty-seventh, which was Friday, he had gone with his friend, Thomas R. McBride, in Pack's five-passenger automobile from his home at Mullens to Beckley for the purpose of seeing a football game. Spending Friday night at Pack's home, they got up around nine-thirty Saturday morning, went down town in Mullens in Pack's car, and at about twelve o'clock, noon, met Leman Rose and Ed Sizemore at the "Sandwich Shop." Rose had about a half pint of liquor. The four drank this half pint in Mullens where they purchased another pint before leaving for Pineville. On the way to Pineville they stopped, pulled off the road and took a drink of liquor. In Pineville, they bought another pint of liquor. When they left Pineville, they drove to Oceana and from there they went to Cyclone to see a young woman by the name of Mabel Brown whom they got to go with them to Mann at around four-thirty in the afternoon. McBride, Rose and Sizemore drank a bottle of beer, leaving Mann at about six o'clock and returning to "Jimmie's Place" in Oceana Junction, where they ate, drank soft drinks and danced in a skating rink connected with the restaurant until the neighborhood of nine o'clock. They then decided to drive to Beckley. Pack thought that the gas tank of his car was practically empty, and since they did not sell gas at "Jimmie's Place", but did sell it at a place directly across the road called "Sally's Place," or "The Dirty Shame", he got into the car, turned it around and stopped within range of the pump for the purpose of having the tank filled. There being no response to his summons of an attendant, Pack left the car and started into the building known as "Sally's Place."
Apparently Gunter arrived at "Sally's Place" just a little time before Pack and those accompanying him at "Jimmie's Place" came across the road for the purpose of buying gasoline. Gunter was a constable in Center District of Wyoming County, having been elected in 1938, a little less than a year before the death of Pack. On Saturday evening, he came to Oceana with a friend of his named S. A. Webb for the purpose of serving several warrants and collecting costs owed the justice with whose office Gunter was connected. At the time or shortly after they arrived at "Sally's Place", Webb left the car for the purpose of getting something to eat in the restaurant, and as he got out, a young woman nicknamed "Blackie" got into the front seat with Gunter. A. little later, Gunter's attention was attracted, he says, by a staggering man who was evidently resisting the request of his woman companion who had hold of his arm. The man was Rufus Williams, a coal miner who lived at Kopperston. Gunter got out of his car for the purpose of arresting Williams for being intoxicated in a public place.
Pack getting out of his car to summon an attendant and Gunter leaving his for the purpose of making an arrest were very nearly coincidental.
The man whom Gunter left his car to arrest had left his home with his wife and his two fourteen-year-old sons at approximately seven-thirty. Rufus Williams had drunk three bottles of beer and had taken nothing alcoholic since leaving home. He, his wife and his two boys state positively that he was not intoxicated.
Necessarily, time is not dealt with in any degree of exactness, but the hour at which young Pack, Gunter and the Williamses were on the ground around Sally's restaurant is not a significant factor, and the witnesses are in practical agreement that it was likely between nine and nine-thirty. As to the occurrences which followed, witnesses who testified on behalf of the state and those that testified on behalf of the defendant are in direct and irreconcilable conflict, so that it can almost be said that the verdict rests upon the determination of credibility on the part of the jury. The theory of the defense, substantiated fully by the testimony of Gunter and Rose and in part by the testimony of Webb and Napier, is that when Gunter was arresting Williams and had taken hold of one of his arms while Mrs. Williams was pulling him away by the other arm, Pack approached Gunter from behind, and unseen by him and without provocation, struck him with an unidentified bludgeon at the right base of the skull, knocking him to his knees and dazing him almost into unconsciousness. Gunter drew his gun from its holster, scrambled to his feet, wheeled so that he faced Pack, and, without the intention of firing it, but for the purpose of using it as a club, brought his pistol down with an overhand blow so that it was accidentally discharged when leveled at the center of Pack's forehead.
On the other hand, the testimony of McBride, Mabel Brown, Mr. and Mrs. Williams, the two Williams boys and one other, is to the effect that when Gunter left his car and attempted to arrest Williams, he was asked to show his badge or exhibit a warrant or to state for what reason he was making the arrest. This he declined to do, and Williams being unwilling to accompany him, struck Williams in the face with his fist, some witnesses say once and others twice. At this juncture, Pack approached in plain view and undertook to remonstrate with Gunter by saying "You can't do that to him where I am and get by with it", or "You can't treat a friend like that", the witnesses not being in entire agreement as to the words used. The state's witnesses state positively that Pack offered Gunter no physical violence nor used any abusive language.
Gunter turned on Pack, leveled his gun and, with the comment, "Keep your chip out of my business", fired.
Mabel Brown watched the occurrence from the front seat of Pack's car, and ...
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