State v. Johnson, No. 13620
| Court | Supreme Court of West Virginia |
| Writing for the Court | CAPLAN |
| Citation | 159 W.Va. 682,226 S.E.2d 442 |
| Parties | STATE of West Virginia v. Nick JOHNSON. |
| Decision Date | 13 July 1976 |
| Docket Number | No. 13620 |
Page 442
v.
Nick JOHNSON.
Page 443
Syllabus by the Court
1. A spontaneous statement by a defendant made prior to any action by a police officer and before an accusation, arrest or any custodial interrogation is made or undertaken by the police may be admitted into evidence without the voluntariness thereof first having been determined in an In camera hearing.
2. An inculpatory statement by a defendant made to an arresting officer after the defendant is in the custody of the police or during police interrogation is inadmissible in evidence unless the voluntariness of such statement first shall have been determined in an In camera hearing.
[159 W.Va. 683] 3. Whether a motion to reopen a case should be granted after the moving party has rested lies within the sound discretion of the court, but where a defendant's motion to reopen is represented to be for the purpose of presenting exculpatory evidence of which he was not formerly aware and which was material to the issues of guilt or penalty the motion should be granted.
4. 'Upon motion to direct a verdict for the defendant, the evidence is to be viewed in light most favorable to prosecution. It is not necessary in appraising its sufficiency that the trial court or reviewing court be convinced beyond a reasonable doubt of the guilt of the defendant; the question is whether there is substantial evidence upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt.' Point 1, Syllabus, State v. Fischer, W.Va., 211 S.E.2d 666 (1974).
John C. Ashworth, Beckley, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Fredric J. George, Asst. Atty. Gen., Charleston, for defendant in error.
Page 444
CAPLAN, Justice:
At the October Term, 1974, of the Circuit Court of Raleigh County, the defendant, Nick Johnson, was indicted by the grand jury serving said circuit court for the murder of Marian McCargish. The pertinent part of the indictment charged that on the fifth day of July, 1974 Nick Johnson 'unlawfully, feloniously, maliciously, wilfully, deliberately and premeditatedly did slay, kill, and murder one Marian McCargish . . .'. Upon arraignment the defendant entered a plea of not guilty and the matter was set for trial.
[159 W.Va. 684] The jury, after hearing and considering the evidence adduced on behalf of the state and the defendant, returned a verdict of guilty of murder in the second degree. By order dated June 27, 1975 the court denied the defendant's motion for a new trial and 'ordered the defendant forthwith sent to Huttonsville Diagnostic and Correctional Institution for a period of sixty days for diagnostic study.' This appeal followed.
The defendant, Nick Johnson, a fifty-eight year old former coal miner, lived alone in a camper trailer in the coal camp community of Fireco in Raleigh County. It appears from the record that on July 5, 1974, the date of this unfortunate homicide, Johnson was at home in his camper trailer, having just returned from Beckley. Marian McCargish, the deceased, resided in the State of Maryland but at the time of the subject shooting was visiting relatives in Raleigh County. He had once lived in Raleigh County at which time he had been slightly acquainted with the defendant. On the above date he stopped at the defendant's trailer for a visit. It is obvious that both parties had been drinking intoxicating liquors prior to and during this visit.
At approximately eight o'clock that evening Manuel McCargish, a brother of the deceased and a resident of Raleigh County, went to the Johnson trailer for the purpose of taking his brother home. Manuel testified that as he approached the trailer he could see that his brother and Mr. Johnson had been fighting with each other and, in fact, were still holding their knives. He talked them into putting their knives away and prevailed upon his brother to start home. Marian, however, turned back and began to argue again with the defendant during which argument they again went into the trailer for another drink. Shortly thereafter the defendant ordered the brothers out of the trailer. Manuel did leave but the deceased stayed and further arguing and fighting took place between him and the defendant. They finally emerged from the trailer and proceeded to a spot where Manuel was sitting in a lawn chair at which time Johnson asked Manuel why everyone was picking on him. [159 W.Va. 685] Manuel explained that he was merely there to get his brother and that he was not picking on him. While they were talking the deceased attempted to take the defendant's gun from him but the defendant turned and went out onto the road. He then ordered the brothers to leave and fired a shot into the ground between them. Manuel testified: 'Mr. Johnson pulled the gun and ordered us to leave and fired between us. Then my brother lunged toward Mr. Johnson and the gun. The gun went off one more time and then they had scuffled down the road several feet and I heard two more shots and my brother fell . . .'.
Shortly after Manuel McCargish had called the police two deputy sheriffs arrived on the scene. One of the deputies, Gary Roark, testified that upon arriving at the scene of the shooting he observed the body of Marian McCargish lying on the ground and indicated that he could feel no pulse. He then proceeded to the trailer and engaged in conversation with the defendant whom he indicated he knew quite well. As he approached the trailer defendant Johnson who was standing in the doorway said to him 'I shot him, Gary'. Deputy Roark then relieved Johnson of his gun, advised of his rights and placed him in the back seat of his own automobile for the purpose of driving him to...
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State v. Davis, No. 16433
...v. Woods, 169 W.Va. 767, 289 S.E.2d 500 (1982); State v. Starkey, 161 W.Va. at 518, 244 S.E.2d at 221; Syl. pt. 4, State v. Johnson, 159 W.Va. 682, 226 S.E.2d 442 (1976) overruled on other grounds State ex rel. White v. Mohn, 168 W.Va. 211, 283 S.E.2d 914, 915 n. 2 (1981); State v. Woods, 1......
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State v. McFarland, No. 16011
...Johnson v. State, 269 Ind. 370, 380 N.E.2d 1236 (1978); State v. Ulm, 326 N.W.2d 159 (Minn.1982). Cf. syl. pt. 1, State v. Johnson, 159 W.Va. 682, 226 S.E.2d 442 (1976) (a spontaneous statement made prior to any custodial interrogation is admissible without the voluntariness thereof being d......
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State v. Burton, No. 13948
...without the voluntariness thereof first having been determined in an In camera hearing." Syllabus Point 1, State v. Johnson, W.Va., 226 S.E.2d 442 (1976); Syllabus Point 4, Wilhelm v. Whyte, W.Va., 239 S.E.2d 735 4 "Q. Mr. Myers, are you the same Roy Myers who was convicted of a felony in t......
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State v. Oldaker, Nos. 15727
...evidence upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt.' Syllabus Point 4, State v. Johnson, 159 W.Va. 682, 226 S.E.2d 442 (1976)." Syllabus Point 5, State v. Woods, 169 W.Va. 767, 289 S.E.2d 500 5. " 'It is within the sound discretion of the court ......
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State v. Davis, No. 16433
...v. Woods, 169 W.Va. 767, 289 S.E.2d 500 (1982); State v. Starkey, 161 W.Va. at 518, 244 S.E.2d at 221; Syl. pt. 4, State v. Johnson, 159 W.Va. 682, 226 S.E.2d 442 (1976) overruled on other grounds State ex rel. White v. Mohn, 168 W.Va. 211, 283 S.E.2d 914, 915 n. 2 (1981); State v. Woods, 1......
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State v. McFarland, No. 16011
...Johnson v. State, 269 Ind. 370, 380 N.E.2d 1236 (1978); State v. Ulm, 326 N.W.2d 159 (Minn.1982). Cf. syl. pt. 1, State v. Johnson, 159 W.Va. 682, 226 S.E.2d 442 (1976) (a spontaneous statement made prior to any custodial interrogation is admissible without the voluntariness thereof being d......
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State v. Burton, No. 13948
...without the voluntariness thereof first having been determined in an In camera hearing." Syllabus Point 1, State v. Johnson, W.Va., 226 S.E.2d 442 (1976); Syllabus Point 4, Wilhelm v. Whyte, W.Va., 239 S.E.2d 735 4 "Q. Mr. Myers, are you the same Roy Myers who was convicted of a felony in t......
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State v. Oldaker, Nos. 15727
...evidence upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt.' Syllabus Point 4, State v. Johnson, 159 W.Va. 682, 226 S.E.2d 442 (1976)." Syllabus Point 5, State v. Woods, 169 W.Va. 767, 289 S.E.2d 500 5. " 'It is within the sound discretion of the court ......