State v. Justice

• Decision Date: 02 August 1951
• Docket Number: No. 10317,10317
• Citation: 135 W.Va. 852,65 S.E.2d 743
• Court: West Virginia Supreme Court
• Parties: STATE, v. JUSTICE.

Page 743

65 S.E.2d 743

135 W.Va. 852

STATE, v. JUSTICE.

No. 10317.

Supreme Court of Appeals of West Virginia.

Submitted April 24, 1951.

Decided May 22, 1951.

Rehearing Denied Aug. 2, 1951.

Syllabus by the Court.

1. Upon the trial of a defendant charged with murder, it is not prejudicial error for the trial court to fail to strike the answer of a witness testifying for the State made to an improper question, where the question is promptly withdrawn, after objection by defendant, and no motion is made to strike the answer, unless it appears from the whole case that the defendant has been prejudiced thereby.

2. The right of a defendant upon trial for murder to cross-examine a witness testifying on behalf of the State is not an unlimited one, there being vested in the trial court discretionary power to restrict or limit the cross-examination.

3. It is not prejudicial error for a trial court to refuse to permit a defendant to show that a witness testifying on behalf of the defendant was convicted of voluntary manslaughter, in connection with the killing of two persons one of whom was alleged to have been killed by the witness and one by the defendant, the defendant then being on trial for the murder of one of the persons, notwithstanding the State had proved that the witness was then serving a life sentence upon a conviction under the habitual criminal statute.

4. 'A judgment in a criminal case will not be reversed merely because of error committed by the trial court but only when the error has been prejudicial to the accused.' State v. Taylor, 130 W.Va. 74, 42 S.E.2d 549.

M. O. Litz, Charleston, Capehart & Miller, Welch, H. D. Rollins, Charleston, for plaintiff in error.

William C. Marland, Atty. Gen., George W. Stokes, Asst. Atty. Gen., for defendant in error.

GIVEN, Judge.

The defendant, Dennis Justice, was indicted at the January, 1949, term of the Criminal Court of McDowell County for the murder of Thomas Whitt. The Circuit Court of McDowell County refused a writ of error to the judgment of the Criminal Court of that county, sentencing the defendant to imprisonment in the State penitentiary for an indeterminate period of not less than five years and not more than eighteen years.

The homicide occurred on the 6th day of November, 1948, about 4:00 P.M. at Panther, near the southern end of the bridge crossing Tug River. Apparently the deceased, Thomas Whitt, and his brother, Curtis Whitt, had driven their passenger automobile to that point some fifteen to thirty minutes prior to the arrival there of the defendant and his father, Matt Justice, in a truck being driven by defendant. Immediately after the arrival of the truck the defendant and his father got out of the truck, each with a thirty-eight caliber pistol in hand, defendant going around the front end of the Whitt automobile and Matt Justice going around the rear thereof. Both immediately started shooting at the Whitt brothers, defendant shooting at Thomas Whitt, and his father shooting at Curtis Whitt. Both of the Whitts were killed. After the shooting was over the pistol used by defendant was found to contain one loaded and five empty shells, and the pistol used by Matt Justice was found to contain two empty and four loaded shells. It is clear that Thomas Whitt died from the gunshop wounds inflicted by defendant. Matt Justice was convicted of voluntary manslaughter in connection with the death of Curtis Whitt.

The Whitt brothers and the Justices were long time acquaintances, and lived in the general vicinity of Panther. Apparently no serious difficulty had previously existed between them. There was some evidence to the effect that the Whitt brothers, a few days prior to the homicide, had 'some trouble' with Zeb Justice, a brother of Matt Justice, and that the Whitt brothers believed Matt Justice would seek revenge against them. There is no evidence, however, that Matt Justice or the defendant intended to do so. About ten-thirty or eleven o'clock on the morning of the homicide the Whitt brothers drove their automobile near the home of Matt Justice, requested him to come to the road, called him a vile name, and, according to the testimony of Matt Justice, 'Curtis throwed a gun on' him and stated "I am going to shoot you in two". Matt Justice did not go to the road. The Whitt brothers drove farther down the road and fired a gun toward the residence of Matt Justice. Later in the day one of the Whitt brothers fired a gun near the home of a daughter of Matt Justice, near the place where the homicide occurred. The daughter notified officers of the actions of the Whitt brothers.

Defendant, twenty-three years of age, lived with his father, but was not at home at the time the Whitt brothers threatened his father. Later in the day, however, he and his father drove a truck to Iaeger for the purpose of purchasing feed and groceries. They went into the White Front Cafe, ordered beer, but left the cafe without drinking the beer, after discovering that the Whitt brothers were in a booth in the cafe. After leaving the cafe they drove to a feed store, made purchases, and apparently delivered some rugs, at the request of the feed store proprietor. The movements of the Whitt brothers can not be definitely traced after they left the cafe. They were at a gasoline service station some little time before the homicide, and the station attendant saw two shotguns in the rear of their automobile. Other witnesses saw the two guns in the Whitt automobile on the day of the homicide. There was some contention to the effect that the guns were intended to be used for squirrel hunting. Herbert Brunty, a witness for defendant, was asked the following question and answered: 'Did you have a conversation with Thomas Whitt on that occasion with reference to Matt Justice? A. He asked me if I had heard the latest. I said, 'No, I reckon not. What about it?' He said, 'About Zeb Justice getting beat up,' and I said, 'He did?' He said, 'Yes.' 'Well,' I said, 'do you think it is over?' 'Well,' he said, 'I don't know, we may have to kill old Matt before it is over.'' There is some evidence to the effect that the reputation of Thomas Whitt was bad, and considerable evidence to the effect that the reputation of Curtis Whitt was bad. Some threats made by the Whitts were apparently communicated to the defendant and his father.

There were a number of witnesses who saw the shooting, or part of it. Some of them testified for the State, and some for the defendant. According to the evidence of the State, at the time the truck driven by defendant stopped at the scene of the homicide, Thomas Whitt, Curtis Whitt and a Thomas Justice were standing on the right side of the Whitt automobile, a Tudor sedan. Defendant got out of the truck with a pistol in his hand and immediately shot at Thomas Whitt, exclaiming: 'Oh, yes, God damn you, we've got you.' He then fired another shot at Thomas Whitt and, after Thomas Whitt fell to the ground, reached into the Whitt automobile, picked up a shotgun, beat Thomas Whitt over the head with it, then went around the Whitt automobile and beat Curtis Whitt over the head with the gun, after Curtis Whitt had been shot by Matt Justice. The two shotguns were lying on the ground near the Whitt automobile immediately after the shooting. They were broken down and neither had been fired. They were loaded, and there were found in the pockets of Thomas Whitt other loaded shells. The stock of one of the guns appeared to have been recently broken.

Evidence of defendant is quite contradictory to that of the State. He contends that the Whitt brothers were lying in wait for him and his father; that as soon as they recognized the truck driven by defendant they ran to their automobile; that each got a shotgun therefrom and was attempting to shoot the defendant and his father when they got out of the truck. John Church, who arrived with the justices in the truck, riding between them, testified that the Whitt 'boys got out of this car with guns or sticks I couldn't state which it was.' Then this witness was asked this question, to which he answered: 'What was said there between Matt and Dennis at that time? A. Well, the first word that was said, as I understood, Matt said, 'Dennis stop this truck.' Well, he went on maybe four or five feet it seemed to me and he said, 'Dennis, I told you to stop this truck.' Dennis said 'All right, daddy, I am stopping it.' I said, 'Wat's the matter?' I was the one that spoke then, I said, 'Whats the matter?' It kinda shocked me. He said, 'That's the Whitt boys,' he said. 'Did you see them jumping out with their guns.' I said, 'Yes, it was something.' He said, 'It is us or them.' I said, 'Maybe not.' Then he stepped out on the right and Dennis got out on the left and I bowed my head over.' Mrs. Raymond Johnson, daughter of Matt Justice, looking out of a window of her home near the scene of the shooting, testified that '* * * I saw Curtis with the gun throwed up in my father's face and when he done that I broke and run.'

The defendant testified that he drove the truck to the end of the Panther bridge intending to stop for the purpose of permitting John Church to get out of the truck at that point, and when asked as to what he saw 'so far as the actions of the Whitt brothers were concerned', answered: 'Well, the first thing, I was talking with John, some conversation, I don't remember what it was, and I noticed the boys in the car, shuffling around in the car, and when I got a little bit closer I could see them going back out of the car and could see the muzzle of a gun through the glass as they went out; so I intended stopping anyway and then I had to stop more suddenly than what I intended to. ' Gainst I could stop the boys were both on the ground. Curtis was coming toward the rear of the car, just dropped his shoulder to see through the glass, and Thomas, he was standing on the opposite side of the wheel on the right hand side with the door...