State v. Jacob LUtz.

• Decision Date: 05 December 1919
• Citation: 85 W.Va. 330
• Court: West Virginia Supreme Court
• Parties: State v. Jacob LUtz.

85 W.Va. 330

State

v.Jacob LUtz.

Supreme Court of Appeals of West Virginia.

Submitted November 25, 1919.

Decided December 5, 1919.

1. Jury Discharge of Jury Drawing of Other Jurors.

The fact that the jury drawn and empaneled and attending a regular term of the circuit court has been discharged, will not prevent the court, thereafter, and during the same term, when found necessary for the convenient dispatch of business, from requiring other jurors to be drawn by the clerk, as provided by section 14 of chapter 116 of the Code, although the original panel, if it had not been so discharged, might not have been exhausted. (p. 334).

2. SamE New Jury List After Discharge of Juror.

If after the empaneling of a special jury of twenty, and before the twelve chosen therefrom to try one indicted for murder are sworn, it is discovered that one of said jurors is disqualified because he had served as juror within the previous four years, the court may without commiting error stand him aside and call another qualified juror and direct the clerk to make a new list of the twenty chosen, from which the State and the prisoner may be given the right again to strike the names of two and six respectively in selecting the jury to try the case. (p. 335).

3. Same Competency of Juror Who Has Expressed an Opinion as to Defendant's Guilt.

If in selecting such special jury of twenty, one of the number on his voir dire is shown to have previously expressed a decided opinion as to the guilt of the accused, based wholly on what he had heard and read in the newspapers, but who swears he has no prejudice or bias against the accused, and that regardless of his previously expressed opinion he felt that after hearing the evidence he could decide the case in accordance therewith, is not disqualified, and the challenge by the prisoner is properly overruled. (p. 335).

4. Homicide Admission of Evidence Mental Condition Before Killing.

Evidence of threats made by one indicted for murder, a few hours before the homicide, that he would kill anyone who undertook to arrest him, though impersonal and directed to no one, is admissible to characterize the mental condition of the accused so recently before the killing. (p. 336).

5. Same Instruction on Self-Defense Erroneous.

Where on such trial there is any appreciable evidence justifying the theory of self-defense, an instruction on the right of the accused to resist an unlawful arrest, but telling the jury he can not do so to the extent of taking the life of the officer, is erroneous and prejudicial, if it does not also advise the jury he may take the life of the officer if he believes and has reasonable grounds to believe that it is necessary to do so to save his own life or his person from great bodily harm. (p. 336).

6. Indictment and Information Offenses for Which Defendant May be Convicted in Homicide Prosecution.

Upon an indictment for murder, in the form prescribed by section 1 of chapter 144 of the Code, which does not therein also aver facts constituting an assault or assault and battery, it is error in an instruction defining the offenses of which the accused may be found guilty under the indictment, to tell them, if not finding him guilty of the graver offenses covered by the indictment, they may find him guilty of assault and battery. The expression in the opinion of the court in State V. Vineyara, 81 W. Va. 98, to the contrary, not a point of decision, should be disregarded. (p. 337).

7. Criminal Law Instruction Credibility of Witnesses.

An instruction telling the jury among other things that they may believe or refuse to believe any witness, when passing on his credibility, though apparently approved as given in State v. Bickle, 58 W. Va. 597, is too broad. The jury may not so arbitrarily refuse to believe any witness, unimpeached. They should be told in the same connection in the alternative that they may give the testimony such weight as under all the facts and circumstances, when fairly and honestly considered by them, they may believe it entitled to. (p. 339).

8. Arrest Criminal Law Instruction Assuming Lawfulness of Arrest by Police Officer Without a Warrant.

Instruction for the State numbered fourteen, as applied to the facts in the case, which assumed the lawfulness of the arrest of the prisoner by the chief of police of the City of Grafton, without a warrant, and not in contemplation of law for an offense committed in his presence, or involving a breach of the peace, was erroneous. The rule of the common law, not changed by any statute in this State applicable to municipal police officers of the City of Grafton, was that an officer could not arrest without warrant for a misdemeanor even when committed in his presence, unless involving a breach of the peace. (p. 339).

9. Same "Offense Committed in Officer's Presence."

An offense can be said to be committed in the presence of an officer only when he sees it with his own eyes, or sees one or more of a series of acts constituting offense, and is aided by his other senses or by information as to the others, when it may be said the offense was committed in his presence. (p. 339).

10. Same Confession Not Taking the Place of Actual Sight of the Offense.

A confession elicited from the accused by an invasion of his person by the officer, as by slapping his hands on his pockets, will not, in the absence of statute authorizing it, take the place of actual sight of the offense. (p. 344).

11. Criminal Law Refusal of Instruction, Unsupported by Evi- dence.

An instruction though propounding a correct legal proposition, is rightly rejected if there be no evidence justifying it. (p. 345).

12. Homicide Right of Officer to Arrest for a Misdemeanor With- out a Warrant.

An instruction telling the jury among other things that if an officer makes an arrest for a misdemeanor without a warrant, he does so at his peril, without also defining the rights and duties of officer and accused in such a case, is rightly rejected, as being an incomplete statement of the law and tending to mislead the jury. (p. 345).

13. Arrest Police Officer's Authority to Arrest Without a Warrant.

Defendant's instruction number twelve, which would have told the jury in substance that under Ordinance LV of the City of Grafton, relating to intoxicating liquors, a police officer had no authority to make an arrest for a violation thereof without a warrant, and that the defendant's arrest by the deceased was unlawful, stated a correct legal proposition and was erroneously rejected. (p. 346).

Error to Circuit Court, Taylor County.

Jacob Lutz was convicted of murder in the first degree, his motion for a new trial was overruled, and from the judgment on the verdict he brings error.

Reversed and remanded.

J. Frank Wilson, for plaintiff in error.

E. T. England, Attorney General, and Henry A. Nolte, Assistant Attorney General, for the State.

Miller, President:

The homicide occurred February 9, 1919, while the circuit court was still in session, but had discharged the petit jury on February 6, and was about to adjourn. A special grand jury was summoned on February 12, convened on February 14, and the same day returned an indictment against the defendant, in the form prescribed by section 1 of chapter 144 of the Code, charging that on the day of, 1919, he did "in the said county of Taylor feloniously, wilfully, maliciously, deliberately and unlawfully slay, kill and murder J. E. B. Phillips, against the peace and dignity of the State." This was the entire substance of the indictment. Neither the manner nor the instrument with which the alleged offense was committed is therein averred. This statute prescribing this form provides that "upon the trial of such indictment the accused may be convicted of either voluntary or involuntary manslaughter, as the evidence may warrant."

The defendant was arraigned on February 15, 1919, pleaded not guilty, on which issue was joined by the prosecuting attor- ney; and the case was set for trial on February 18, 1919. On the day of the trial he was permitted to withdraw his plea, and thereupon tendered but was not permitted to file a plea in abatement; and also a motion to quash the panel of jurors, which was overruled. Both plea and motion covered the same subject, and were based on the proposition that the jurors were irregularly drawn, as the panel for the term discharged on February 6, had not been exhausted. The prisoner then entered his plea of not guilty, on which issue was again joined.

The prisoner then moved for a continuance, because of the absence of witnesses, and his counsel requested time to prepare his affidavit in support of his motion, which was denied, but counsel was permitted to call the defendant to the bar and examine him on the subject, after which the motion was overruled. The case was then tried before the jury empaneled and sworn, who on February 19, returned a verdict of "guilty of murder in the first degree." On February 26, 1919, defendant's motion for a new trial was overruled, and the judgment of the court now presented for review was that the defendant be taken to the penitentiary, where on the 27th day of June, 1919, he be hanged by the neck until he be dead.

The rapidity with which the prisoner was disposed of after the homicide was such as to satisfy the most extreme views on this subject.

As the judgment must be reversed on other grounds, we need not regard the point of error urged with respect to defendant's motion for a continuance. The same conditions are not likely to be again presented calling for any ruling of the court thereon.

And for like reason it is not likely that a motion to quash the panel of petit jurors will be involved on another trial. But we may not go amiss in saying that we think there is no merit in the point. The theory of counsel seems to be that though the regular jury summoned for the term had been discharged on February 6, that panel had not been exhausted or so disposed of as to warrant the court in...