State v. Hamric, No. 12525

CourtSupreme Court of West Virginia
Writing for the CourtBERRY; BROWNING
Decision Date21 November 1966
PartiesSTATE of West Virginia v. Bonnie June HAMRIC.
Docket NumberNo. 12525

Page 252

151 S.E.2d 252
151 W.Va. 1
STATE of West Virginia
v.
Bonnie June HAMRIC.
No. 12525.
Supreme Court of Appeals of West Virginia.
Submitted April 27, 1966.
Decided July 15, 1966.
Rehearing Denied Nov. 21, 1966.

Page 255

Syllabus by the Court

1. 'To warrant a change of venue in a criminal case, there must be a showing of good cause therefor, the burden of which rests upon defendant, the only person who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist at the time application for a change of venue is made. Whether, on the showing made, a change of venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon will not be disturbed, unless it clearly appears that the discretion aforesaid has been abused.' Pt. 2, syllabus, State v. Wooldridge, 129 W.Va. 448 (40 S.E.2d 899).

[151 W.Va. 2] 2. The mere existence of widespread publicity is not in and of itself sufficient to require a change of venue.

3. Where a deadly weapon is used in a homicide there is a presumption of second degree murder and the defendant has the burden of proving that it was justified and the state has the burden of proving that such killing was deliberate and premeditated and raising it to first degree murder, all of which are jury questions.

4. Assignment of error for the failure of a trial court to direct a verdict cannot not be interposed in an appellate court where no such motion was made in the trial court or if such motion was made at the conclusion of the state's evidence and the defendant proceeds to introduce evidence and the motion is not renewed at the conclusion of all the evidence such motion is waived.

5. Where an accused fired a shotgun charge through a window in her home and the charge his and killed a person who is on his own property at the time and is not attempting to enter the defendant's house and there is evidence from which a jury could infer that the defendant knew whom she was shooting, the homicide is neither

Page 256

excusable nor justified and would warrant a verdict of murder.

6. A jury has the right to infer malice on the part of a defendant if the homicide is committed with a deadly weapon.

7. Where a defendant relies on self-defense and stated that she believed she was in danger of great bodily harm and was attempting to protect herself from apparent danger and fires a shotgun charge through a window and no one is attempting to enter her home at the time, she assumes the risk in so doing.

8. If a prosecuting attorney or special prosecuting attorney intentionally withholds information as to material evidence which would affect the guilt or innocence of the accused he is prosecuting it would not only be reprehensible but would constitute reversible error.

9. A new trial on the ground of afterdiscovered evidence or newly discovered evidence is very seldom granted and the circumstances must be unusual or special.

[151 W.Va. 3] 10. "A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that plaintiff was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side.' Point 1, syllabus, Halstead v. Horton, 38 W.Va. 727 (18 S.E. 953).' Point 2, syllabus, State v. Spradley, 140 W.Va. 314 (84 S.E.2d 156).

11. A statement by a person who later became deceased made soon after an occurrence and under circumstances that may be regarded as spontaneous and as a direct result of the occurrence is admissible in evidence under the doctrine of Res gestae as an exception to the hearsay evidence rule.

12. A statement by a deceased person with regard to the circumstances surrounding a homicide to the following effect: 'I don't believe I am going to make it. I don't believe it is worth it' constitutes a foundation for a dying declaration which is admissible in evidence as an exception to the hearsay evidence rule.

13. It is the mandatory duty of a trial court, whether requested or not, to hear the evidence and determine in the first instance, out of the presence of the jury, the admissibility of a dying declaration and if the court determines that such declaration is admissible in evidence, the evidence may be heard by the jury, but it is only concerned with the weight and credibility to be given to such evidence and not its admissibility.

14. It is not reversible error to give an erroneous instruction which favors the party complaining of such instruction.

15. The defendant cannot take advantage of any error for which she is responsible.

[151 W.Va. 4] 16. The attorney representing the state in a criminal case or a plaintiff in a civil case has the right to make an opening and closing argument at the conclusion of all the evidence but is required to make a fair opening argument with regard to the evidence and points relied on in order to allow the attorney representing the defendant to answer such matter after the opening argument because he cannot reply to the closing argument of the plaintiff or attorney for the state.

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17. It is not necessary to show motive in case of a homicide in order to warrant a verdict of murder.

18. Ordinarily where objections to questions or evidence by a party are sustained by the trial court during the trial and the jury instructed not to consider such matter, it will not constitute reversible error.

19. Where there are two instructions offered by opposing parties which in form and effect embody the same legal principle and amount to the same thing it is not reversible error to give one and refuse the other.

20. It is not reversible error to refuse to give instructions offered by a party that are adequately covered by other instructions given by the court.

Savage, Goshorn, MacCorkle & Rippetoe, D. J. Savage, Charleston, David R. Karr, Ravenswood, for plaintiff in error.

C. Donald Robertson, Atty. Gen., Leo Catsonis, Asst. Atty. Gen., Charleston, for defendant in error.

BERRY, Judge:

The defendant, Bonnie June Hamric, was indicted by the grand jury of the Circuit Court of Jackson [151 W.Va. 5] County, West Virginia, at the January 1965 term on the charge of first degree murder of Glenn E. Winters. Winters was shot by the defendant on September 7, 1964, and he died on September 20, 1964 as the result of the gunshot wounds. The defendant was convicted by a petit jury of second degree murder on January 18, 1965. The trial court overruled a motion to set aside the verdict and on March 15, 1965, sentenced the defendant to confinement in the West Virginia State Prison for Women for a term of from five to eighteen years. Upon application to this Court a writ of error and supersedeas was granted on November 1, 1965 to the judgment of the Circuit Court of Jackson County of March 15, 1965.

On the night of September 7, 1964, the defendant was sitting in a small 'den' in her home at 224 South Street in Ripley, Jackson County, West Virginia, watching television. Her two young children were in bed in a room on the second floor of the house. The room in which the defendant was watching television was rather small, measuring 9 10 1/2 feet. The only entrance to the room was a door from the dining room and there was only one window in the room. The evidence indicated the window could not be locked. The Venetian blind on the window appeared to be closed when looking at it from the door in the room but if one stood up close to the Venetian blind which was apparently tilted she could see out of the window to a limited degree. Street lights were burning in the vicinity of the home at the time of the shooting.

The defendant testified that about 9 o'clock she heard noises at the window and could hear the window being raised. She stated she became frightened and called out, 'Who's there?' and receiving no answer again said, 'Who is there, go away or I will shoot.' The defendant then got a shotgun, called for her children to come downstairs and left her home with the children and went across the street to the home of her mother for the purpose of using her telephone to call [151 W.Va. 6] her husband as the telephone in her house had been disconnected. When she arrived at her mother's home she called the sheriff's office and asked them to get in touch with her husband who was a deputy sheriff and have him come home immediately. Her husband arrived soon after this call about the same time the city police arrived. She returned to her home accompanied by her mother who made an examination of the outside of the house where the window to the den was located. The window was found opened several inches. Her mother closed the window but later opened it at the request of the defendant in order that her

Page 258

husband could see it. There is no evidence in this case that the window was ever closed again after it had been reopened by the mother on this occasion. The defendant's husband remained at home for about one-half hour during which time he got a twelve-gauge shotgun and showed the defendant how to load it. He then left to resume his duties as a deputy sheriff. The defendant testified that she later loaded the shotgun herself but the state police testified she told them that it was left loaded by her husband and that she...

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90 practice notes
  • Orr v. Crowder, No. 15477
    • United States
    • Supreme Court of West Virginia
    • December 16, 1983
    ...S.E.2d 922 (1975), overruled on other grounds, State v. Demastus, W.Va., 270 S.E.2d 649 (1980), and Syllabus Point 18, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966). Chauncey H. Browning, Atty. Gen., and David P. Cleek, Deputy Atty. Gen., Charleston, for appellants. Page 598 O'Brien, ......
  • State v. Ashcraft, No. 15822
    • United States
    • Supreme Court of West Virginia
    • November 10, 1983
    ...instructions offered by a party that are adequately covered by other instructions given by the court." Syllabus Point 20, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 6. "Refusal of an instruction, on a trial for murder, giving the findings in the power of the jury, including one of involun......
  • State v. Bennett, No. 16360
    • United States
    • Supreme Court of West Virginia
    • September 12, 1985
    ...566, 202 S.E.2d 828 (1974); syl. pts. 1 and 2, State v. Dandy, 151 W.Va. 547, 153 S.E.2d 507 (1967); syl. pts. 1 and 2, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966); State v. Loveless, 140 W.Va. 875, 880-81, 87 S.E.2d 273, 277 (1955); syl. pt. 2, State v. Wooldridge, 129 W.Va. 448, 4......
  • State v. Young, No. 15785
    • United States
    • Supreme Court of West Virginia
    • November 10, 1983
    ...S.E.2d 389 (1982). See also State v. Hall, W.Va., 298 S.E.2d 246 (1982); State v. Pratt, supra; State v. Hamric, 151 Page 127 W.Va. 1, 151 S.E.2d 252 (1966). Thus, while "[a] change of venue will be granted in West Virginia when it is shown that there is 'a present hostile sentiment against......
  • Request a trial to view additional results
90 cases
  • Orr v. Crowder, No. 15477
    • United States
    • Supreme Court of West Virginia
    • December 16, 1983
    ...S.E.2d 922 (1975), overruled on other grounds, State v. Demastus, W.Va., 270 S.E.2d 649 (1980), and Syllabus Point 18, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966). Chauncey H. Browning, Atty. Gen., and David P. Cleek, Deputy Atty. Gen., Charleston, for appellants. Page 598 O'Brien, ......
  • State v. Ashcraft, No. 15822
    • United States
    • Supreme Court of West Virginia
    • November 10, 1983
    ...instructions offered by a party that are adequately covered by other instructions given by the court." Syllabus Point 20, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 6. "Refusal of an instruction, on a trial for murder, giving the findings in the power of the jury, including one of involun......
  • State v. Bennett, No. 16360
    • United States
    • Supreme Court of West Virginia
    • September 12, 1985
    ...566, 202 S.E.2d 828 (1974); syl. pts. 1 and 2, State v. Dandy, 151 W.Va. 547, 153 S.E.2d 507 (1967); syl. pts. 1 and 2, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966); State v. Loveless, 140 W.Va. 875, 880-81, 87 S.E.2d 273, 277 (1955); syl. pt. 2, State v. Wooldridge, 129 W.Va. 448, 4......
  • State v. Young, No. 15785
    • United States
    • Supreme Court of West Virginia
    • November 10, 1983
    ...S.E.2d 389 (1982). See also State v. Hall, W.Va., 298 S.E.2d 246 (1982); State v. Pratt, supra; State v. Hamric, 151 Page 127 W.Va. 1, 151 S.E.2d 252 (1966). Thus, while "[a] change of venue will be granted in West Virginia when it is shown that there is 'a present hostile sentiment against......
  • Request a trial to view additional results

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