State v. Henry
| Decision Date | 29 March 1902 |
| Citation | 41 S.E. 439,51 W.Va. 283 |
| Parties | STATE v. HENRY. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. In the trial of an indictment for murder, all instruments which the evidence tends to show were used in the perpetration of the crime may be produced for the inspection of the jury.
2. When the evidence shows that the coat worn by the accused, when with the deceased just before the killing, was found hidden in the prisoner's room between the mattress and slats of his bed, and there are spots on it which might have been made by the blood of the deceased, and on other clothing of his worn at the same time similar spots are found, and the mode of the killing was such as makes it probable that the blood of the victim did splatter upon the clothing of the murderer such clothing may be produced at the trial for the inspection of the jury, and a witness who saw the spots soon after the murder may testify that he supposed the spots were blood stains, as the statement is nothing more than his opinion and that is all he could state with certainty.
3. It is not error to allow the jury to inspect instruments used in the commission of the crime and the clothes of the prisoner bearing marks which the evidence shows may be blood stains, and to hear nonexpert testimony as to the character of the marks, without it having been established, by microscopic examination or otherwise, that the marks are blood stains.
4. When the motive for the crime appears to have been robbery, and there is evidence tending to show that the prisoner was practically without money just before the murder, and had considerable money immediately afterwards, but claims that it was his own, it is proper to ask him, on cross-examination, if he did not, shortly before the murder, deposit, for drinks at a saloon, pay checks representing wages due him.
5. It is not error to refuse to instruct the jury that they are not permitted to say blood found on the clothes of the accused, is human blood, in the absence of the establishment of that fact by a microscopic examination.
6. When a view of the premises is taken, the court is not bound to instruct the jury that they should not consider as evidence any of the objects or locations pointed out to them upon the grounds.
7. Errors in the rulings of the court, made during the trial, and as to other matters not vital and jurisdictional in their nature, but such as may be waived, must be affirmatively shown by the record; else the proceedings are conclusively presumed to be regular.
8. The following verdict is sufficient: "We, the jury, find the defendant, S. H., guilty of murder in the first degree as charged in the within indictment."
9. When upon a writ of error to a judgment in a criminal case overruling a motion to set aside a verdict and award a new trial, on the ground that the verdict is contrary to the evidence, the evidence, not the facts, is certified in the bill of exceptions, this court will not reverse the judgment, unless, after rejecting all the conflicting oral evidence of the exceptor, and giving full faith and credit to that of the adverse party, the decision of the trial court still appears to be wrong.
Error to circuit court, Wetzel county; M. H. Willis, Judge.
State Henry was convicted of murder in the first degree, and brings error. Affirmed.
McIntire & McIntire and R. R. Fauntleroy, for plaintiff in error.
E. L. Robinson and R. H. Freer, Atty. Gen., for the State.
This is a writ of error to a judgment of the circuit court of Wetzel county, granted upon the petition of State Henry, a colored man, who has been convicted of murder in the first degree and sentenced to be hanged for the murder of one John Richardson who was also colored. They had come to Wetzel county from North Carolina in March, 1900, to work for a construction company engaged in building the West Virginia Short Line Railroad. At that point, and at the time of the murder, there were more than 100 colored men working for said company. The railroad ran along Fishing creek, and at the point where these men were working the creek made a sharp bend around the point of a hill, and opposite this hill there was another. The line of the railroad cut off this bend, crossing the creek at two places, and ran through both hills, making a tunnel on each side of the creek, called in the evidence in this case the "Twin Tunnels." Some distance below this bend, the railroad crosses the creek again just above a little village called Porter's Falls. Between the point at which the railroad crosses the creek between the two tunnels and the point at which it crosses just above Porter's Falls, the creek runs between the railroad and the public road. The construction company's commissary, where the men were paid off and bought their supplies, was a short distance below where the railroad crosses the creek between the tunnels, and a short distance below that there was a saloon. From the saloon and commissary, the two points most frequented by all the employés, Porter's Falls could be reached either by going down the public road on the same side of the creek or by going a very short distance up the creek, crossing it on the railroad, passing through the tunnel, and following the railroad on the other side of the creek down to Porter's Falls. The distance was about the same by the two routes. Between the commissary and the railroad crossing between the tunnels there was a small shanty occupied by a negro, whose name was Ison, and another occupied by Willie Wilson, and the company's engine house. All these laborers occupied small temporary buildings called shacks or shanties, situated at various places in the neighborhood of these two tunnels. The defendant's shack was beyond the creek and the tunnel, a short distance frem the commissary, and near the railroad. It had a partition through it, and one end of it was occupied by the defendant and, possibly, another man or two, and the other end by John Richardson and a man named Phillips. Just across a small branch, called "State Road Run," stood another shack, which was occupied by Jerry McCissom, Harris Hunter, and Calvin Parks, and probably others. It was the custom of the construction company to pay the men on the 20th of each month. In the month of October, 1900, the 20th occurred on Saturday, and as this murder occurred within a very short distance from the commissary, at which the deceased drew his month's pay, and within less than an hour after he got his money, and several of the parties whose names have been mentioned went to the commissary with him and left there with him, it becomes necessary to trace minutely their movements during that evening. The defendant, John Richardson, Calvin Parks, Harris Hunter, and Jerry McCissom all quit work at the same time, shortly before 6 o'clock, and went to the commissary together, and drew their money in pay envelopes. Before this occurred it was understood among them that they were all to go to Porter's Falls after receiving their wages. Having gotten their money, they all came out of the commissary, and started down the road to the saloon, some 400 or 500 yards distant, and in the direction of Porter's Falls. When at a point about half way to the saloon, or more, Henry and Richardson stopped, they being ahead of the others, and some of the others asked, in some form, why they had stopped, and the defendant said he had some apples across the creek, or by the creek on the same side, there being controversy as to the locality indicated, and he and Richardson were going to get the apples, and after doing so they would meet the others at the saloon. Henry had spoken of the apples during the day, saying that he had found them on the day before. As to where he said the apples were there is controversy. They separated at this point, Henry and Richardson going down toward the creek through some brush or woods, and the other men going on to the saloon. Across the creek from this point, and some distance from the creek up in the meadow, Richardson was found dead on the afternoon of the next day. His skull had been crushed with a stone mason's hammer, and he had been dragged by the feet for some distance from the point at which he was killed to a place where the sod had been taken up with a shovel and a hole dug under it and his body had been put in that hole and the sod turned back over him, so as to almost completely cover him up. The hammer was found 50 or 60 yards from this grave, and the shovel at some point in the field near by. The hammer and shovel belonged to the tools used in the tunnel. The hammer had been missed from the tunnel on Friday. On that day the defendant had not worked, but had been down to Porter's Falls, and at other places in the neighborhood, and at his shack, and also had passed through the tunnel. As he walked with Richardson from the commissary on the evening of the day of the murder, he carried under his arm a grain sack, called by some of the witnesses a "croker" sack. He claims he had that sack to put the apples in, he having on Friday left the apples somewhere in the brush near the creek in two paper sacks. The defendant, Hunter, Parks, and McCissom all agree that Henry was not seen any more by the others until they met an hour or more later at Porter's Falls. There is no doubt that within that time Richardson was killed, and the only question in the mind of counsel for the prisoner seems to be whether he took Richardson across the creek and murdered him, or whether Richardson left the defendant, overtook the other parties on their road to Porter's Falls by way of the railroad and tunnel, and was killed by some of them. The defendant testifies that he and Richardson did not cross the creek, but...
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