State v. Legg

• Decision Date: 10 April 1906
• Citation: 53 S.E. 545,59 W.Va. 315
• Parties: STATE v. LEGG.
• Court: West Virginia Supreme Court

53 S.E. 545

59 W.Va. 315

STATE v. LEGG.

Supreme Court of Appeals of West Virginia.

April 10, 1906

Syllabus by the Court.

Where evidence is certified by the trial judge, and a separate bill of exceptions is used to make it a part of the record, a reference in the bill to the certificate of evidence, stating that it is made a part of the record and a part of the bill of exceptions, is sufficient to make the evidence a part of the record.

The testimony of a witness, upon the preliminary examination of one accused of crime, may be used by the witness upon the trial of such accused person for the purpose of refreshing his present recollection, but when so used it is not admissible in evidence, and should not be read to the witness in the presence of the jury.

Where a justice, for the purpose of determining whether or not he will hold an inquest, takes the sworn statement of a person who is not, at the time, accused of killing the deceased, but against whom an indictment is afterwards preferred, such statement is admissible upon the trial of the accused; not having been made by the person as a witness upon a legal examination, it is not protected under section 20, c. 152, Code 1899. A justice, in taking such statement, is without warrant of law.

Upon the trial of a wife for the murder of her husband, testimony tending to show the existence, prior to the alleged killing of adulterous relations between the prisoner and a third person, is admissible, for the purpose of showing motive for the commission of the offense.

Where upon a trial for murder, the killing is shown to have been done with a deadly weapon, and the defendant relies upon accidental killing as an excuse, it is a question for the determination of the jury as to whether the killing was intentional or the result of an accident. And when the evidence tends, in an appreciable degree, to establish both theories, it is the duty of the court to instruct the jury presenting both, if asked to do so.

The purpose of giving instructions is to aid the jury in arriving at a proper verdict, and the practice of repeating them is discountenanced.

It is not error, where an instruction is asked telling the jury that they are the sole judges of the credibility of the witnesses, and that they have the right to believe or not to believe any witness who has testified in the case, to modify the instruction so as to tell them that they cannot arbitrarily disregard the testimony of a witness, unless they believe it untrue.

An instruction which tells the jury that before they can find the defendant guilty of murder, they must believe from the evndence beyond all reasonable doubt that the defendant willfully, maliciously, deliberately, feloniously, and unlawfully killed the deceased, is erroneous in this, that it is not necessary that these elements should coexist in order to find the defendant guilty of murder in the second degree.

An instruction saying that before the jury could find the defendant guilty of murder, they must believe from the evidence beyond all reasonable doubt that the defendant maliciously, feloniously, and unlawfully killed the deceased is erroneous in not limiting the instruction to murder in the second degree.

Where one, upon an indictment for murder, relies upon accidental killing as a defense, and there is evidence tending in an appreciable degree to establish such defense, it is error to refuse to instruct the jury that if they believe from the evidence that the killing was the result of an accident they should find the defendant not guilty.

On a trial for murder, where the defense is that the killing was accidental, it is error to instruct the jury that they shall find the defendant not guilty if they believe the killing was the result of an accident, unless they further find that the defendant was guilty of criminal carelessness, without instructing as to what constitutes criminal carelessness, and without further qualifying the instruction so as to enable the jury, if they should find the defendant guilty of that offense, to properly fix the degree of crime.

Where, upon a trial for murder, the defendant relies upon accidental killing as a defense, it is error for the court, when asked to instruct the jury that if they believe from the evidence that the killing was accidental, and not intentional, they should find the defendant not guilty, to refuse to do so; and it is also error for the court to modify such instruction so offered so as to present a theory of the case to them, when there is no evidence, or, if any, when it does not tend in an appreciable degree to support such theory.

Error to Circuit Court, Clay County.

Sarah Ann Legg was convicted of murder, and brings error. Reversed, and new trial granted.

Horan & Horan and W. E. R. Byrne, for plaintiff in error.

C. W. May, Atty. Gen., Frank Lively and J. E. Springston, for the State.

SANDERS J.

This writ of error is to a judgment of the circuit court of Clay county, convicting the defendant, Sarah Ann Legg, of the murder of her husband, Jay Legg, and sentencing her to be hanged.

The Attorney General asserts that the evidence is not made a part of the record by proper bill of exceptions, and relies upon Tracy's Adm'x v. Carver Coal Co., 57 W.Va. 587, 50 S.E. 825, Dudley v. Barrett (W. Va.) 52 S.E. 100, Railway Co. v. Joyce (W. Va.) 52 S.E. 498, and Parr v. Currence (W. Va.) 52 S.E. 496, to support this contention. The rule announced in these cases has no bearing upon the case under consideration. There it was held that the evidence had not been made a part of the record. In Tracy's Adm'x v. Coal Co. a skeleton bill of exceptions was used for the purpose of certifying the evidence and making it a part of the record, with parenthetical instructions to the clerk to insert stenographer's transcript of the evidence. It did not even appear that the evidence had been transcribed by the stenographer, and, if not, it could not have been certified by the judge, as required. By section 9, c. 131, Code 1899, it is provided that a party may except to any action or opinion of the court, and tender a bill of exceptions, and, if the action or opinion of the court be upon any question involving the evidence or any part thereof, the court shall certify all the evidence touching such question, and the judge shall sign any such bill of exceptions, and it shall be made a part of the record. The judge cannot certify evidence which is not written out and before him at the time, so as to comply with the requirement of the statute. Also, in that case, the stenographer's transcript of the evidence bore no mark or memorandum, to which reference was made, by which it could be safely identified as the evidence adduced upon the trial. It is not necessary to review the other cases referred to and relied upon, because by consulting them it will be found that they differ widely from the case in hand. The evidence here was certified by the judge, and by a separate bill of execptions made a part of the record by referring to it as the "certificate of evidence." It is insisted, however, that the bill, in attempting to make the evidence a part of it, says: "Here insert certificate of evidence, which is made a part of the record in said case, and a part of this bill of exceptions," and that the bill only attempts to make the certificate a part thereof. The bill calls for and makes a part of it the certificate of evidence. What certificate of evidence? The certificate of evidence in the case, to which the bill of exceptions related. The evidence had been certified by the judge, as required by statute; the certificate of evidence showed the style of the case, and that the evidence contained in it was the evidence, and all the evidence, introduced upon the trial, and was signed by the presiding judge. The certificate was self-identifying, as much so as the bill of exceptions itself. Then we have the judge certifying all the evidence, which is, by a separate bill of exceptions, made a part of the record by unmistakable reference thereto.

There are many errors assigned as reasons for reversing the judgment of the circuit court, and awarding the prisoner a new trial, which will be considered in the following order:

1. Complaint is made that the trial judge examined and cross-examined certain witnesses in such manner as operated prejudicially to the prisoner. The record shows that the judge did examine some of the witnesses at considerable length. Whether such examination was proper or not, and ground for reversal, we are not called upon to determine. In order to demand a review of the action of the trial court in this respect, there should have been an objection to the examination, and, if overruled, proper exceptions taken. There was no objection made to the examination by the judge except to one question, and we cannot say that the asking of this single question was prejudicial to the prisoner. Nor does it appear that the court was asked to set aside the verdict upon this ground. Where the action of the trial court is sought to be reviewed upon the ground that improper questions were asked witnesses, or that the judge, in examining such witnesses, did so in an improper manner, there should be an objection and exception to such course.

2. It is insisted that certain evidence was improperly admitted, over the objection of the defendant. Pat Butler, who had been a witness upon the preliminary examination of the accused, and whose evidence had, upon such examination, been reduced to writing, also testified upon the trial. It appears that this witness was at the home of the defendant immediately after the shooting, and after having stated, upon his examination as a witness upon the trial of this case, that while there he

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