State v. Johnson

• Court: Supreme Court of West Virginia
• Writing for the Court: McWHORTER
• Citation: 39 S.E. 665,49 W.Va. 684
• Decision Date: 07 September 1901
• Parties: STATE. v. JOHNSON et al.

39 S.E. 665
49 W.Va. 684

STATE.
v.
JOHNSON et al.

Supreme Court of Appeals of West Virginia.

Sept. 7, 1901.

HOMICIDE—INDICTMENT—CHARGING DEGREE OF OFFENSE—PANEL—COMPETENCY OF JUROR—EVIDENCE—ARGUMENT OF COUNSEL-OBJECTIONS.

1. Flanagan's Case, 26 W. Va, 116 (Syl., point 1); Smith's Case, 24 W. Va. 814 (Syl., point 1); Schuelle's Case, Id. 707 (Syl., point 1); and Douglass' Case, 23 S. E. 724, 41 W. Va. 537 (Syl., point 1), —approved.

2. A person charged by indictment with felony is entitled under the law to a panel of 20 jurors, each and all of whom shall be "free from exception, " from which panel the jury for the trial of the case is to be selected, under section 3, c. 159, Code.

3. In order that one who has formed or expressed an opinion as to the guilt or innocence of the accused may be accepted as a competent juror on such panel, his mind must be in condition to enable him to say on his voir dire unequivocally and without hesitation that such opinion will not affect his judgment in arriving at a just verdict from the evidence alone submitted to the jury on the trial of the case.

4. When a juror on his voir dire admits that he has formed and expressed an opinion of the guilt or innocence of the accused, and expresses any degree of doubt as to whether such previously formed opinion would affect his judgment in arriving at a just and proper verdict in the case, it is error to admit him on the panel.

5. On the trial of an indictment for murder, where self-defense is relied upon by the defendant, and, to avail, must be established by a preponderance of evidence, it is the duty of the jury to consider and weigh all evidence tending to prove self-defense, whether intro duced by the defendant or by the state, and all the evidence and circumstances in the case.

6. Syllabus, Landers v. Railroad Co., 33 S. E. 296, 46 W. Va. 492, approved.

(Syllabus by the Court.)

Error to criminal court, Ohio county; T. J. Hugus, Judge.

Clarence Johnson and Hugh Devinney were convicted of murder in a criminal court. From a judgment of the circuit court affirming the same, they bring error. Reversed.

B. B. Dovener and S. O. Boyce, for plaintiffs in error.

R. H. Freer, Atty. Gen., Alex Dulin, W. C. Meyer, and John A. Howard, for the State.

McWHORTER, J. At the November, 1898, term of the criminal court of Ohio county, the grand jury returned the following indictment, duly indorsed by the foreman "A true bill, " to wit:

"The State of West Virginia, Ohio County, to wit: In the Criminal Court of the said County. The jurors of the state of West Virginia, in and for the body of the county of Ohio, and now attending the criminal court of the said county, upon their oaths present that Clarence Johnson and Hugh Devinney, on the 9th day of September, in the year of our Lord 1898, in the said county of Ohio, feloniously, willfully, maliciously, deliberately, and unlawfully did slay, kill, and murder one Charles McLaughlin, against the peace and dignity of the state. W. C. Meyer, Prosecuting Attorney for the Said County of Ohio.

"Found upon the information of John M. Shorts. Witness sworn in open court, and, by order of the court, sent before the grand jury to give evidence."

On the 10th of November, 1898, the defendants appeared in person, and demurred to the indictment, in which the prosecution joined, which demurrer, being argued, was overruled by the court, and the defendants pleaded not guilty, and the cause was set for trial on the 25th of November, 1898, on which last-named day the defendants moved the court for a continuance until the then next term, because of the absence of Annie Riley, a witness on behalf of the defendants, and filed the affidavit of Clarence Johnson in support of the motion; but the court overruled the motion, and refused to continue the case, to which ruling defendants excepted. And at the same time the defendants filed their joint petition and affidavit, by permission of the court, praying for a change of venue, said affidavit being accompanied by extracts from certain newspapers published daily in the city of Wheeling, and of general circulation in the city of Wheeling and Ohio county, as a part of said affidavit, and placed August C. Meyer upon the stand, who was examined as a witness on behalf of said petitioners on said motion for change of venue, which said motion was, on the 26th of November, taken under advisement, and on the 28th was further considered and overruled,

[39 S.E. 666]

to which ruling defendants excepted, and the court proceeded to select a jury for the trial of the case, and, after securing 11 names, "jurors summoned by virtue of the several venire facias heretofore directed by the court were elected and tried, and found free from exception, and all the others who appeared being challenged for causes, and it appearing that the several venire facias have been exhausted, it is ordered that the sheriff of this county do summon one hundred qualified jurors from the body of the county of Ohio, as heretofore directed by the court, to appear here to-morrow morning at 8:30 o'clock, and the elected jurors aforesaid were placed in the hands of the sheriff, with the usual instructions of the court"; and, the required panel of 20 jurors having been secured, on the 30th of November the defendants renewed their motion for a change of venue, based upon the original petition for that purpose filed in the case, and asked that the evidence heard in open court on examination of the jurors on their voir dire be made a part of the record, and considered in connection with their said motion for change of venue, based on the petition and evidence theretofore filed and offered in the case for that purpose, and the court overruled said motion, and the defendants excepted to the action of the court in overruling said motion and petition for change of venue. Defendants put in their plea of not guilty, and a jury was impaneled and sworn, and, after hearing the evidence and arguments of counsel, returned a verdict of guilty of murder in the first degree, as charged in the indictment. The defendants moved the court to set aside said verdict and grant them a new trial, and also moved in arrest of judgment upon said verdict, and on the 9th day of February, 1899, the court overruled said motion, and pronounced judgment against the defendants, who excepted to said rulings of the court, and filed eight several bills of exceptions to the various rulings of the court. Defendants obtained a writ of error to the circuit court of Ohio county, which being heard on the 4th day of December, 1899, the judgment of the criminal court was affirmed, to which ruling of the circuit court the defendants also excepted, and obtained from one of the judges of this court a writ of error, and assigned as error the overruling of defendants' demurrer to the indictment.

It is contended with apparent earnestness that the indictment fails to charge the defendants with murder in the first degree, and only charges murder in the second degree; hence it was error to enter judgment upon said verdict, and not to arrest judgment thereon, as moved by the defendants. The statute prescribes the form of indictment for the crime of murder, and it has been held time and again by this court that an indictment after the form prescribed by the statute (section 1, c. 144, Code) is sufficient. In State v Schnelle, 24 W. Va. 767 (Syl., point 4), it is held: "In this state there is no such thing as an indictment for murder in the first or second degree. The indictment is for murder, and it depends upon the proof whether it is in the first or second degree." Flanagan's Case, 26 W. Va. 116 (Syl., point 1); Douglass* Case, 41 W. Va. 537, 23 S. E. 724; Baker's Case, 33 W. Va. 319, 10 S. E. 639. Defendants' counsel ask this "court to not only reconsider this point decided in the Schnelle and Baker Cases, but permit appellants to argue the same." The questions involved have been so often and so fully argued and so uniformly decided by the court that, as said in the Douglass Case, 41 W. Va., at page 538, 23 S. E. 724: "We regard the indictment good under several decisions there mentioned [referring to the Baker Case, 33 W. Va. 319, 10 S. E. 639], and will not reopen its discussion. It has been so long used, and so often approved, that the matter ought to have rest."

The second assignment—that it was error to refuse defendants a continuance—was based solely on the absence of Annie Riley, a material witness for the defense, and is disposed of by the fact that the witness was present at the trial and testified in the case, and the defendants had the benefit of her testimony.

The third assignment—"in overruling and not sustaining and granting the several motions of the defendants for a change of venue"—is based principally upon the prejudice in public sentiment claimed to be wrought up against the defendants in the city of Wheeling and county of Ohio by published editorials in the three principal daily newspapers of the city, the Intelligencer, the Register, and the Wheeling Evening News, and the further fact that a subscription paper was...