State v. Johnson

• Citation: 95 S.E.2d 409,142 W.Va. 284
• Decision Date: 04 December 1956
• Docket Number: No. 10797,10797
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. Theodore Roosevelt JOHNSON.

Page 409

95 S.E.2d 409

142 W.Va. 284

STATE of West Virginia v. Theodore Roosevelt JOHNSON.

No. 10797.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 18, 1956.

Decided Dec. 4, 1956.

Syllabus by the Court

'In a homicide trial, malice and intent may be inferred by the jury from the defendant's use of a deadly weapon, under circumstances which the jury does not believe afforded the defendant excuse, justification or provocation for his conduct. Whether premeditation and deliberation may likewise be inferred, depends upon the circumstances of the case.' Point 2, Syllabus, State v. Bowles, 117 W.Va. 217 .

Clifford, Jones & White, Clarksburg, for plaintiff in error.

John G. Fox, Atty. Gen., Arch W. Riley, Asst. Atty. Gen., for defendant in error.

GIVEN, Judge.

Defendant, Theodore Roosevelt Johnson, was indicated by a grand jury of he Criminal Court of Harrison County, at the November, 1953, term thereof, for the murder of Robert Garrett. Defendant attacked the validity of the indictment by a plea in abatement, based on a contention that the grand jury which returned the indictment was not properly constituted, because not drawn from a grand jury list prepared as required by law. A demurrer to the plea was sustained by the trial court. Upon a verdict of guilty of murder in the first degree, with recommendation that he be confined in the penitentiary, defendant was sentenced to confinement in the West Virginia State Penitentiary for the period of his life.

In the early morning of September 5, 1953, a Saturday, defendant, with members of his family, left his home in Jamestown, New York and drove, in his own automobile, to Fairmont, West Virginia, where he visited in the home of Hattie Hugger, a sister of his wife. About nine o'clock of that evening, accompanied by his wife and several other persons, he left Fairmont in his own automobile, then being driven by James Hooper, for Clarksburg, West Virginia, where he planned to attend a dance at Columbian Hall, on Water Street in Clarksburg. The party arrived at the hall shortly after ten o'clock and went directly to the dance. About midnight, defendant and others of his party left the dance hall. After defendant left the hall, he observed a fight between Hattie Hugger and James Hooper taking place on or near the walkway leading from the dance hall to a point near where his car was parked. After attempting to stop the fight, he demanded and received his automobile keys from James Hooper. A little later, defendant discovered that he had lost his automobile keys. While trying to find them, apparently by feeling in the grass along the walkway, according to his own testimony, he 'heard a sound like somebody threw a brick against the building'. According to the State's contention, however, it was during the time defendant was looking for his automobile keys that Robert Garrett walked up to defendant and said to him, 'These your keys Mister?', at which time defendant reached for the keys with one hand, and with the other hand fired the shot which killed Garrett. Defendant testified that he was not acquainted with Garrett at the time of the shooting. There is no evidence that defendant had any previous trouble with Garrett. He denies firing the shot, and denies any knowledge thereof. The weapon used was never found. The keys to defendant's automobile were later found near the place where the homicide occurred.

The principal, if not the controlling, contention of defendant is that the evidence is insufficient to support a verdict of first degree murder. The contention is based on the theory that the evidence is not sufficient to identify defendant as the person who fired the shot which killed Garrett, and that the State failed to prove malice or premeditation on the part of defendant. The contention necessitates a more detailed examination of the State's evidence relating to the killing.

Two witnesses, Willie Hines and Howard Hines, brothers, testifying on behalf of the State, gave testimony to the effect that defendant fired the shot that killed Garrett. Willie Hines, about thirty four years of age, attended the dance with his wife. He saw the fight, or at least a part thereof, between James Hooper and Hattie Hugger, and testified that 'After he [defendant] spoke about his keys he started looking for them on the ground and this boy [Garrett] walked up from the left hand side and said 'These your keys Mister?"; and that defendant answered 'yes' and then 'shot Garrett and he buckled down'. The witness was then asked: 'After the shot was fired what, if anything, did Robert Garrett do?' He replied: 'He said, 'Oh', made a pass to grab his chest but he fell before his hand got up to his chest'. On cross-examination, this witness, after repeating in effect what Garrett had said regarding the keys, was asked: 'And without more ado you say this man [defendant] jumped up and grabbed the keys and Johnson shot him?' He answered: 'That is right'. An attempt was made by defendant, on cross-examination of this witness, to show that there was very little light at the point of the shooting, and that the witness had little or no opportunity to recognize the person who shot Garrett. The witness testified positively, however, of Johnson, that 'I saw his face after he shot and just before he ran'.

Howard Hines, about thirty years of age, who also attended the dance, about midnight saw the fight between James Hooper and Hattie Hugger. He testified to the effect that he observed Johnson 'feeling along in the grass' for his keys; that Garrett 'had something in his hands and he says 'Is this your keys?"; and that Johnson 'reached across and got them and he shot when the boy had them out or something in his hands. I would say it was his keys'. The statements of the witness on cross-examination were to the same general effect. Apparently, neither Willie Hines nor Howard Hines was acquainted with defendant prior to the homicide. They were acquainted with Garrett. Other witnesses testified to the effect that Johnson was present at the dance.

The plea in abatement, challenging the validity of the indictment on the ground that the grand jury list, from which the grand jury returning the indictment was drawn, was improperly and illegally constituted, so as to render the indictment invalid, is based on the same facts alleged in the plea in abatement considered in State v. Carduff, W.Va., 93 S.E.2d 502. The questions raised were settled by the decision and judgment in that case and need not be further considered here.

Defendant contends that the evidence is insufficient to sustain the verdict of the jury, for the reason that it does not identify defendant as the person who fired the shot and does not establish malice, deliberation or premeditation on the part of defendant. In State v. Bowles, 117 W.Va. 217, 185 S.E. 205, 206, this Court held: '2. In a homicide trial, malice and intent may be inferred by the jury from the defendant's use of a deadly weapon, under circumstances which the jury does not believe afforded the defendant excuse, justification or provocation for his conduct. Whether premeditation and deliberation may likewise be inferred, depends upon the circumstances of the case.' In State v. Medley, 66 W.Va. 216, 66 S.E. 358, 359, 18 Ann.Cas. 761, this Court approved the giving to the jury an instruction which read: "If they believe from the evidence in the case that the accused was guilty of shooting the deceased with a deadly weapon and killing him, the intent, the malice, and the willful deliberation and premeditation may be inferred from the act". State v. Tucker, 52 W.Va. 420, 44 S.E. 427; State v. Welch, 36 W.Va. 690, 15 S.E. 419. We should point out, however, that it is not proper to give such an instruction in the circumstances of every case where malice and premeditation are involved. See State v. Whitt, 129 W.Va. 187, 40 S.E.2d 319; State v. Garner, 97 W.Va. 222, 124 S.E. 681; State v. Coleman, 96 W.Va. 544, 123 S.E. 580; State v. Whitt, 96 W.Va. 268, 122 S.E. 742.

The testimony of Willie Hines and Howard Hines is positive in nature, and definitely identifies defendant as the person who fired the shot which killed Garrett, Willie Hines testifying that defendant was 'about three feet...