State v. Harlow, 10436

• Decision Date: 24 June 1952
• Docket Number: No. 10436,10436
• Citation: 137 W.Va. 251,71 S.E.2d 330
• Court: West Virginia Supreme Court
• Parties: STATE, v. HARLOW. Case

Page 330

71 S.E.2d 330

137 W.Va. 251

STATE, v. HARLOW.

Case No. 10436.

Supreme Court of Appeals of West Virginia.

Submitted April 22, 1952.

Decided June 3, 1952.

Dissenting Opinion Filed June 24, 1952.

Syllabus by the Court.

1. In the trial of a criminal prosecution, where guilt or innocence depends on conflicting evidence, the weight and credibility of the testimony of any witness is for jury determination.

2. Where the accused in a criminal prosecution voluntarily testifies in his own behalf he thereby waives his privilege of not being required to give evidence against himself. He is then subject to cross-examination to the same extent as other witnesses.

3. 'A verdict of guilty in a criminal case will not be reversed here because of error committed by the trial court, unless that error is prejudicial to the accused.' State v. Rush, 108 W.Va. 254, Point 5, syllabus .

4. Unwarranted or inflammatory remarks made in the course of an argument to a jury by a prosecuting attorney will not constitute reversible error where no objection to the remarks was interposed at the time the remarks were made, no request made of the court to instruct the jury to disregard them, and no manifest prejudice to defendant appears.

5. The giving of an incomplete instruction will not constitute reversible error if the imcompleteness thereof is remedied by the giving of a correct instruction.

D. Jackson Savage, Charleston, for plaintiff in error.

Chauncey Browning, Atty. Gen., T. D. Kauffelt, Asst. Atty. Gen., for defendant in error.

GIVEN, Judge.

Defendant, James Harlow, was convicted of second degree murder in the fatal shooting of Carl Compton, on November 15, 1950, and sentenced to confinement in the state penitentiary, for a term of not less than five nor more than eighteen years, by the Intermediate Court of Kanawha County, that court having entered judgment on March 2, 1951. On June 29, 1951, defendant, by counsel, tendered and filed before the Circuit Court of Kanawha County his petition for a writ of error and supersedeas to the judgment of the Intermediate Court and, on July 14, 1951, the circuit court refused the writ of error and supersedeas prayed for. It is from the latter order that this Court granted a writ of error and supersedeas, on October 22, 1951.

Defendant has assigned and briefed the following six points of error, alleged to have been prejudicial:

'(1) The Court erred in refusing to set aside the verdict and grant the defendant a new trial as contrary to the law and evidence.

'(2) The Court erred in admitting certain evidence over the objection of the defendant, and in refusing to admit certain evidence of the defendant properly offered.

'(3) The Court erred in commenting to the jury on the fact that certain matters were in evidence before the jury and had been testified to by certain witnesses when, in truth and in fact, such evidence was not before the jury, and had not been testified to by any witness.

'(4) The Court erred in overruling the defendant's motion for a mistrial for improper remarks by the Prosecuting Attorney in his argument.

'(5) The Court erred in refusing to instruct the jury to disregard certain improper remarks of the Prosecuting Attorney in his closing argument before the jury.

'(6) The Court erred in reading to the jury the State's Instructions No. 2 and No. 3 and in refusing to read to the jury certain instructions offred by the defendant.'

It will be observed that the assignments of error require detailed recital of the evidence.

On the afternoon and evening of November 15, 1950, defendant and the deceased, Carl Compton, were together in various places in the locality of Coal Fork, Kanawha County, where the shooting occurred. They were first observed in Eskdale, a community about three miles south of Coal Fork, about 4:00 P.M. Also present was Clyde Stover, who was wounded by the shots fired by the defendant at the time Compton was killed. While in Eskdale these three men were involved in a disturbance which will be detailed later. Defendant purchased two pints of whiskey at the state liquor store in Eskdale, and returned to Coal Fork to the home of Estill Walls, a neighbor and friend of the three principals. While at the Walls home, defendant proffere whiskey to all present, and it appears that everyone present, including Compton and Stover, took a drink of it. This occurred about 6:00 P.M. Shortly thereafter defendant went to the home of Charles Compton and found Carl Compton and Stover there, along with Thomas Compton and Charles Compton, brothers of deceased, Tom Harlow, brother of defendant, and Dorena Compon, wife of Charles Compton. Some of the male members of the party, including defendant, his brother Tom, and Stover became engaged in what was apparently a friendly scuffle. However in a short time, Quincy Blake, stepfather of the Comptons, arrived and ordered Tom Compton to go home with him. This occurred about 8:00 P.M. According to some of the testimony Stover became incensed at the action of Quincy Blacke, and when defendant and Tom Harlow attempted to restrain him Stover struck Tom Harlow, whereupon defendant struck Stover, rendering him unconscious. It does not appear affirmatively that Carl Compton was in any wise engaged in this encounter.

Shortly thereafter defendant and Tom Harlow carried Stover out of the Charles Compton home to the Stover home nearby, where defendant left Stover and his brother on the front porch, and according to his testimony, he returned to the yard at his home where he met Everett Green, an uncle of the deceased, who transported him in his automobile along with another man to the community of Giles, where defendant remained a short time and returned about 9:00 P.M. to the Harlow home where defendant alighted. Carl Compton and Stover were at that time attempting to move a Chevrolet automobile which had stalled in a depression or ditch near the Harlow gate. According to the testimony of Green, defendant stated, after seeing Stover, 'I will get out and give him a good whipping.' According to defendant's testimony, when he returned with Green he was told by his brother, 'Stover has got a knife and said he was going to cut your heart out with it. You had better get inside. * * * I climbed up on the bumper and over the fender and in the gate and went in the house.' Laer defendant left the house and walked to the gate with a twelve guage shotgun, the magazine of which contained four shells, loaded with buckshot, and after going to the gate with the shotgun and seeing the Carl Compton and Stover had removed the car from the ditch and departed, returned to the house.

At the scene of the removal of the Chevrolet automobile from the ditch were Quincy Blake, Junior Pugh, Cloyd Eskins, Tom Harlow and William Pettit, Jr. According to Pettit he went into the Harlow home with defendant and later went out with him to the gate to retrieve a jacket which defendant stated he had hung on the gatepost. The jacket was not there, whereupon Pettit relates that defendant stated, 'If they got it I will get it from them'. In so far as it can be ascertained from the record, defendant then returned to the Harlow house, took down the shotgun and went to the Walls house and from there onto the railroad right of way opposite the Wall's gate. The time was approximately 9:20 P.M. The car driven by Compton then approached and, according to the testimony of defendant, Compton and Stover 'followed me to the railroad'. Defendant's version of the shooting is as follows:

'Q. Did either one of them say anything, and if they did, what did they say? A. Carl Compton said he would take a search warrant for me for 'packing that God domn shotgun.' I told him, 'You can't take any warrant for me. I have a license to pack it and I am going hunting.'

'Q. Tell the jury what happened then. A. He said, 'I have your jacket and you ain't going to get it.' I told him I didn't want the jacket and I would get it tomorrow if I needed it.

'Q. What else was said? A. He said, 'I ain't scared of your gun or you neither.' I told him, 'I ain't asking you to be scared of me or the gun. I don't want any trouble with you.' I told him half a dozen times to leave me alone, that I didn't want any trouble with him.

'Q. Was one or both of those boys present? A. Both of them.

'Q. Did either of them have a flashlight? A. Yes, sir.

'Q. Which one had the flashlight? A. Junior Stover.

'Q. Was either one of them armed with a weapon at that time? A. Yes, sir.

'Q. Which one? A. Junior Stover.

'Q. What kind of a weapon did he have? A. It looked like a hunting knife.

'Q. Which hand did he have it in? A. His right hand.

'Q. In which hand did he have his flashlight? A. His left hand.

'Q. Did you see Carl Compton have any weapon? A. Not to my knowing.

'Q. After you said you told him you didn't want any trobule, what else happened? A. I told them to leave me alone, that I didn't want any trouble with them.

'Q. How far did you back up? A. Exactly 21 steps down the railroad.

'Q. How do you know it was 21 steps? A. Because I measured it after I got out.

'Q. Got out of where? A. Jail.

'Q. Were you present when it was measured? A. Yes, sir.

'Q. Who did the stepping? A. You did.

'Q. Tell the jury what happened that led up to this shooting, from where you last told about, and how it occurred. A. I told them I din't want any trouble and they kept backing me down the road. They was between me and the light and I could see them for 'Biddy Boots' jumped at me.

'Q. Which one is 'Biddy Boots'? A. Carl Compton. He and Stover both jumped at me.

'Q. What did you do? A. I jumped back and fired one shot into the ground.

'Q. When did you put a shell in the chamber of your gun? A. When I was backing down the railroad track.

'Q. And while this conversation was going on? A. Yes, sir.

'Q. Go ahead. You jumped back and fired a shot into the ground? A. Yes, sir.

'Q. Then what happened? A. They kept coming.

'Q. What did you do? A....