State v. E. J. (Tim) Taylor
| Decision Date | 06 March 1928 |
| Docket Number | (No. 6043) |
| Citation | 105 W.Va. 298 |
| Parties | State v. E. J. (Tim) Taylor |
| Court | West Virginia Supreme Court |
The general rule is that where a crime is divided into degrees, if the court commits error in instructing the jury as to the higher degree of such crime, and they return a verdict of guilty of the lower degree, as to which they were properly instructed, the defendant cannot complain, (p. 300.)
An instruction to the jury that if they believe from the evidence beyond a reasonable doubt that the defendant, on the day laid in the indictment, maliciously and unlawfully assaulted and beat the prosecuting witness with a dangerous weapon with intent, then and there to maim, disfigure, disable and kill him, then the jury should find the defendant guilty of malicious wounding as charged in the indictment; "but if they believe from the evidence that the act was done unlawfully, but not maliciously, then the jury should find the defendant guilty of unlawful wounding' as charged in the indictment," is sufficient to warrant a finding of "unlawful wounding," on an indictment under section 9 of chapter 144 of the Code. (p. 301.)
To support a finding of unlawful wounding under section 9 of chapter 144 of the Code, there must be intent to produce a permanent disability or disfiguration, (p. 302.)
(Assault and Battery, 5 C. J. § 220; Mayhem, 40 C J. § 9.)
4. Criminal Law In Determining Weight of Testimony, Jury Should Consider Witness' Interest; Instruction That Jury Should Weigh Defendant's Evidence as That of Any Other Witness Held Not Improper for Failure to Call Attention to Defendant's Interest.
While the rule is that in determining the weight to be given the testimony of any witness, the jury should take into consideration his interest in the issue involved, an instruction offered by the defendant on his competency to testify in his own behalf which tells the jury that it is their duty "to weigh and. consider his evidence the same as that of any other witness and give to his evidence such weight and credit as they think the same is entitled to and to weigh his evidence under the same rules as they weigh the evidence of other witnesses testifying in this case," is not improper because of failure to call the attention of the jury to the defendant's interest in the result of the case, and should be given when requested, (p. 305.)
(Criminal Law, 16 C. J. §§ 2291, 2444.)
5. Same Persistent Efforts to Introduce Improper and Prejudicial Evidence After Court Has Ruled Against it is Not Wholly Cured by Instructions to Disregard it.
The effect of the persistent efforts of counsel on the trial of a case to introduce improper and prejudicial evidence, after the trial court has ruled on its illegality, is not wholly cured by instructions to disregard it. (p. 306.)
(Criminal Law, 16 C. J. § 2271.)
6. Same; Opinion Wound Could Have Been Caused by Fall on Rock Held Inadmissible Without Evidence of Surroundings.
Opinion evidence of an expert is properly rejected where there is no evidence in the record to support such conclusion, (p. 306.)
(Criminal Law, 16 C. J. § 1532.)
Error to Circuit Court, Nicholas County. E. J. (Tim) Taylor was convicted of unlawful wounding, and he brings error.
Judgment reversed; verdict set aside; new trial awarded.
Howard B. Lee, Attorney General, and W. Elliott Nefflen, Assistant Attorney General, for the State. Osenton & Lee, for plaintiff in error.
Miller, President:
The defendant was tried and found guilty of unlawful wounding, on an indictment, the first count of which charged that he and his brother William S. Taylor, at the time and place named, "did unlawfully combine, conspire and confederate together for the purpose of inflicting punishment and bodily injury upon one A. J. Brewster and in pursuance to said combination, conspiracy and confederacy, on the day and year aforesaid, in the county aforesaid, with malice aforethought feloniously and unlawfully in and upon A, J. Brewster did make an assault, and did then and there feloniously, wilfully, deliberately and unlawfully strike, beat, cut, bruise and wound the said A. J. Brewster, with intent him the said A. J. Brewster to maim, disfigure, disable and kill," etc. The second count, after charging conspiracy as in the first, alleges that the said defendants "feloniously, wilfully, deliberately and unlawfully did strike, beat, cut, bruise, wound and inflict punishment and bodily injury upon the said A. J. Brewster," etc. The court refused to require the State to elect upon which count it would rely for conviction.
It is contended by counsel for defendant that the first count in the indictment is not good as one for malicious maiming, that while it charges that the defendant with malice aforethought made an assault upon the prosecuting witness, it does not allege that he maliciously committed the acts done in pursuance thereof; and that, therefore, it was error to refuse defendant's instruction offered, that he could not be found guilty of malicious wounding under this count, and to give to the jury the State's instruction, that he might be found guilty of malicious wounding, if the jury believed the acts complained of were done maliciously.
While the indictment does not charge that the acts constituting the offense were maliciously done, it is alleged that the assault was committed with malice aforethought, and that the acts complained of were done with intent to maim, disfigure, disable and kill the prosecuting witness. Whether or not the indictment was sufficient to support a verdict of malicious wounding, we have held: "The general rule is that where a crime is divided into degrees if the conrt commits error in instructing the jury as to the higher degree of such crime, and they return a verdict of guilty of the lower degree, as to which they were properly instructed, the defendant can not complain." State v. Watson, 103 W. Va. 482, and authorities cited. Here, the defendant was found guilty of unlawful wounding, as to which offense the jury were properly instructed.
Error is assigned in the giving of State's instruction number two, as follows: '' The court instructs the jury that even though you may believe from the evidence in this case that no conspiracy existed between the defendant and W. S. Taylor to inflict bodily injury upon the said A. J. Brewster, yet if you believe from the evidence beyond a reasonable doubt, that
the defendant E. J. (Tim) Taylor on the day of
September, 1926, maliciously and unlawfully assaulted and beat the prosecuting witness, A. J. Brewster, with a dangerous weapon of any kind, and wounded him with said weapon with intent, then and there to maim, disfigure, disable and kill the said A. J. Brewster, then the jury should find the defendant guilty of malicious wounding as charged in the first count in the indictment in this cause; but if the jury believe from the evidence that the act was done unlawfully, but not maliciously, then the jury should find the defendant guilty of unlawful wounding as charged in the first count in this indictment, ''
In addition to the objection to this instruction above disposed of, it is said that the second part, as to the offense of unlawful wounding, omits entirely the question of intent. The statute upon which the indictment was based, section 9, Chapter 144 of the Code, is:
It will be noted that the instruction does not, in the second part, contain the expression "with the intent aforesaid," or words of like meaning. It is contended that as the instruction was given, the jury would be warranted in finding the defendant guilty of unlawful wounding without finding that the act constituting the offense was done with intent. The instruction must be read as a whole. To make the part relating to unlawful wounding mean anything, the jury must necessarily consider the whole instruction. The only effect of the latter part was to strike out the word "malicious" before the word "wounding". No other part of the first clause of the instruction could possibly be changed or disregarded. Some parts of the first clause being necessary to complete the second, the jury could not arbitrarily disregard any part thereof, except to substitute "unlawful" for "malicious".
The court refused at the request of the defendant, to instruct the jury that the words "maim, disfigure and disable" as charged in the indictment mean a permanent maiming, disfigurement, and disabling. Mayhem at the common law is denned as the violently depriving another of the use of such of his members as may render him less able in fighting to defend himself or to annoy his adversary. State v. McDonie, 89 W. Va. 185; 4 Blackstone, p. 205;...
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