State v. Heetzog.
| Decision Date | 23 February 1904 |
| Citation | 55 W.Va. 74 |
| Parties | State v. Heetzog.. |
| Court | West Virginia Supreme Court |
Upon the trial of H. for murder, the court gave the jury the following instruction: The court instructs the jury that a man is presumed to intend that which he does, or which is the immediate or necessary consequence of his act. And if the jury believe from the evidence that H. with a deadly weapon in his possession, without any or upon very slight provocation, gave to R. a mortal wound, the said H. is prima facie guilty of willful, deliberate and premeditated killing; and the necessity rests upon H. of showing extenuating circumstances, as they appear from the case made by the State, H. is guilty of murder in the first degree. Held: That the giving of said instruction was error, (p. 80).
Where a statute establishes degrees of the crime of murder, and provides that all willful, deliberate and premeditated killing, shall be murder in the first degree, evidence that the accused was intoxicated at the time of the killing, is competent for the consideration of the jury, upon the question whether the accused was in such condition of mind as to be capable of deliberation and premeditation, (p. 83).
It is not error to refuse an instruction, not especially adapted to, nor based upon, the facts of the case, which the evidence fairly tends to prove, (p. 85).
Error to Circuit Court, Taylor County.
Grant G. Hertzog was convicted of murder, and brings error.
Reversed.
J. G. St. Clair and C. P. Guard, for plaintiff in error. B. E. Bailey, and Attorney General, for the State.
The plaintiff in error, Grant P. Hertzog, was indicted by the Grand Jury of the Circuit Court of Taylor County, at a term of said court, held on the 13th day of April, 1903, for the murder of John Russell. The indictment is in the form prescribed by section 2 of chapter 144 of the Code, and is sufficient on demurrer. State v. Douglass, 41 W. Ya. 537; State v. Dodds, 46 S. E. 228. At the same term the defendant demurred to the indictment, and the demurrer was overruled. A jury was then empaneled; a trial of the defendant was had, and a verdict of guilty of murder in the first degree was found against the defendant, who was thereupon sentenced to be hanged by the neck until dead; and the time of his execution was fixed for the 3rd day of July, 1903. A Judge of this Court granted Hertzog a writ of error to said judgment.
During his trial, the defendant excepted to various rulings of the court; and here assigns for error, that he was prejudiced by certain instructions given to the jury by the court, at the in- stance of the State; by the refusal of the court to give certain other instructions, asked for by him; and because the court refused to set aside the verdict, on the ground that the same was contrary to the law and the evidence. All the matters aforesaid, complained of by the defendant, are made parts of the record by proper bills of exception.
Both the defendant and the deceased, at the time of the homicide, resided at or near Simpson, a small mining town in Taylor County, and were employed at that place by the Grafton Coal & Coke Company. Russell was a coal miner, and Hertzog was the driver of a horse or mule in the same mines. Defendant and deceased had known each other for about three years, had been friendly and associated much together, during that time. 74
Both, of them were addicted to the use of intoxicating liquors. It is proved by several witnesses that Hertzog had been accustomed to drinking, for a time long prior to the homicide; and that, at times when drinking, he did not seem to know his wife from any other person; or to understand what he was then doing. The homicide occurred on Sunday, February 1, 1908. about four or five o'clock, p. m. It appears that Hertzog and Russell had been drinking together, prior to that date, and that defendant had been drinking for two or three weeks, next before that time. It is also shown that Hertzog and others had an eight gallon keg of beer, the night before the killing; that next morning, there was about a half-gallon of the beer left, which defendant drank. It is shown that he also drank whiskey that morning; that about ten o'clock, on that morning, Hertzog came into the small store or shop of V. L. Davis at Simpson; that he saw Russell there, and hit him on the head with his hand; that they then scuffled a little, but this does not appear, from the circumstances, to have been anything more than the result of too much drink. Hertzog then took the train for Grafton, saying to Russell, to meet him there on his return. It appears that Hertzog and others, who went with him, got whiskey in Grafton; that he was under the influence of liquor at Grafton; that he and those with him came back to Simpson on the train about 3 p. m., bringing whiskey with them; that he went to the home of his mother-in-law while at Grafton, and ate dinner, and took away with him, from there, a small breech-loading rifle, belonging to him, for the purpose, as he said, of having Mr. Lilly, a gunsmith, to bore it out; that he afterwards saw Mr. Lilly who said that he could not then do the work; but would fix the gun some other day; that it was then about train time; that defendant did not then have sufficient time to take the gun back to the house of his mother-in-law before the train would leave Grafton for Simpson; and that he took the gun with him to Simpson. William Lilly, referred to, testiiied that ne saw defendant in Grafton; that defendant had a target gun with him, the barrel thereof being from ten to twelve inches long with, a little wire handle; that defendant wanted him to make it shoot "a 22 long, instead of a 22 short;" that he did not then fix the gun, but told Hertzog that he would fix it some day, if Hertzog would bring it to him. Mrs. Weekley, the.mother-in-law of defendant, testified that Hertzog had the gun at her house; that he, on the Sunday referred to come there; was drinking at the time; took some dinner; that the gun was hanging up in the rack in the house; that defendant said, "I believe T will take my gun home with me, and get it fixed;" and that he took it away with him. On the return of said defendant to Simpson, he was met at the railroad platform by Russell and others. Defendant, Russell and others, then went down the railroad track together. Defendant had some whiskey, and a Mr. Seamon had a quart. Defendant says that they drank it. After they drank this whiskey, defendant and Russell started along the railroad track in the direction of their homes, accompanied by some other persons. They stopped some distance from the platform, and engaged at target shooting with the gun. Afterwards, a witness saw them coming up along and near the track in a meadoAV, acting "Just like us boys used to play leap frog." This was in the meadow of C. C. Curry, who swears that he first heard Hertzog asking Russell to go home with him, but Russell did not want to go; Witness further says, Witness says that, after some time, Hertzog said to Russell again, "I will shoot you;" that he got the gun the second time and took up the track, and Mr. Russell walked up the meadow; and he (Hertzog) shot at him (Russell), and he never fell or hollowed again. When this shot was fired the parties were about fifty feet apart. It was fifteen or twenty minutes after the first shot. It is further shown that Hertzog re-loaded his gun, and that Russell got upon the railroad track, and sat down there; where he sat for fifteen or twenty minutes; that Hertzog, in the meantime, had come up to within seven or ten feet of Russell, and then said, "damn you I am going to kill you;" that Russell begged him not to do so; drew his hand above his head, and attempted to get up, when Hertzog shot him again; and that Russell fell and never moved. Witness says, that Hertzog then put a load in his gun; laid it down on the track; walked up and took Russell by the collar, and pulled it open to see where he had shot him. It is shown that Hertzog, as soon as he realized the fact of the killing, and at other times soon thereafter, said that he had killed his best friend. There were several other persons near the place when the shooting occurred who testified on the trial, and whose evidence differs, in some respects, from that of Curry, but not as to the main fact. The gun used by Hertzog appears to have been the one brought by him from Grafton on that day. Some of the witnesses say that, after the shooting, Hertzog impressed them as being drunk; Mrs, Hertzog says that he came home drunk that evening; and he swears that he remembered nothing after drinking with Russell and others near Simpson, until the next morning, when he was in jail at Grafton.
Dr. Ellis, who performed the autopsy on the remains of Russell, says that he found a furrowed wound on Russell's right leg just above the knee; another in the groin on the left side, and another in the region of the chest, on the left side, where the collar bone couples on to the breast bone; and that the death of Russell was caused by the said gun shot wound. He found the bullet, It was about 20-100 of an inch bullet. It is not necessary to give more of the evidence. No opinion is expressed as to what it proves. The above facts arc stated in order that a fair understanding of the instructions, given and refused by ...
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