State v. London McKinney.

• Decision Date: 12 April 1921
• Docket Number: No. 4131.,4131.
• Citation: 88 W.Va. 400
• Parties: State v. London McKinney.
• Court: West Virginia Supreme Court

88 W.Va. 400

State

v.London McKinney.

No. 4131

Supreme Court of Appeals of West Virginia.

Submitted April 5, 1921.

Decided April 12, 1921.

1. Criminal Law Evidence of Trailing of Accused by Bloodhounds Held Admissible.

Evidence of the trailing of a person accused of the commission of an offense, from the place of the perpetration thereof to the place of his arrest, by blood hounds shown to be of pure blood, to have acuteness of scent and power of discrimination between persons by means thereof, to have been trained in the trailing of human beings and to have successfully trailed and identified other persons accused of crime, as having been at the scene of commission thereof, is admissible on an issue as to his identity, as a person who had been at the place of the perpetration of the offense of which he is accused, at or near the time thereof. (p. 405).

2. Same-Admissibility of Trailing of Accused by Bloodhounds

Held Not Precluded by Issue of Whether Accused Traveled on Foot or Horseback.

Admissibility thereof is not precluded by another issue as to whether the accused traveled on horseback or afoot, there being evidence tending to prove each hypothesis, nor by a preponderance of evidence, if any, in favor of the former. (p. 406).

3. Same-If Evidence Tends to Prove Facts Relevant to Any Issue it is Admissible.

Upon an inquiry as to the admissibility of evidence, its weight or probative value is not the criterion or test. If it tends even slightly to prove a fact relevant to any issue in the case and material or forceful in the determination thereof, it is admissible. (p. 406).

4. Same-Admission of Accused of Commission of Offense Some Hours Later, Stating Motive Therefor, Held Inadmissible as Self-Serving and Not Part of Res Gestae. A statement of one accused of an offense, made some hours after the act in question, admitting it and stating the motive for commission thereof, is inadmissible, it being no part of the res gestae and being a self-serving declaration. (p. 406).

5. Same-Evidence That the Person Shot Had Driven His Wife

From Home, and That She Came to the Home of Accused Held Improperly Excluded.

Upon the trial of a person charged with having maliciously shot the husband of his sister, in which there is evidence tending to prove facts which might be deemed by the jury to amount to provocation generating heat of blood, or to justification of the shooting on the ground of self-defense, it is improper and prejudicial, to exclude evidence tending to prove that the wife, on coming to the home of the accused, shortly before the shooting, was in a bruised and lacerated condition and had said her husband had beaten her and driven her from home, offered in connection with evidence that the accused had gone to the home of the victim, at the request of the wife, on a humane and proper mission, in the attempt to perform which the shooting occurred. (p. 406).

6. Same-Slight Evidence Sufficient to Justify Instructions Submitting Hypotheses it Tends to Prove.

Slight evidence is sufficient to justify the giving of instructions submitting the hypotheses it tends to prove. (p. 408).

7. Same-Instruction as to Reasonable Doubt of any Juror Should be Given.

An instruction on the subject of the legal requirement of unanimity of the jury in the finding of a verdict, which, if given, would advise the jury that, if any juror, after due consideration of the evidence and consultation with his fellows, has reasonable doubt of the guilt of the accused in a criminal case, it is his duty not to surrender his own convictions, simply because the other jurors are of a different opinion, is correct, and should be given upon request, unless its subject is covered by some other instruction given in the case. (p. 409).

Error to Circuit Court, Summers County. London McKinney was convicted of malicious shooting, and he brings error.

Reversed and remanded. T. N. Read and R. F. Dunlap, for plaintiff in error. E. T. England, Attorney General, and R. A. Blessing, Assistant Attorney General, for the State.

of Fenbarger, judge:

Having been convicted of the malicious shooting of J. G. McKinney, the plaintiff in error, London McKinney, complains of the judgment entered on the verdict, which imposes upon him imprisonment in the Penitentiary of this State, for the period of six years.

An assignment of error is based upon the overruling of a motion to quash the indictment, but nothing is said in argument in support thereof. The indictment is in the usual form and no defect therein is perceived.

A statement of the peculiar facts of the case is necessary to a clear comprehension of the other rulings complained of. While on his porch, early in a November evening, but after dark, J. G. McKinney was shot in the face, the ball striking the right cheek, knocking out some teeth, breaking the jaw bone and, divided into parts, lodging in various places in the neck and head. The shot came from the neighborhood of his gate, and, at the time, his dogs were at that point apparently resisting entrance, and he had hissed them on and may possibly have thrown a stick which, the accused says, struck him before he fired the shot. J. G. McKinney says he hissed the dogs, under the impression that the attempted intruder into the yard was an old sow of his, that had been in the habit of breaking in. He saw nobody at the gate and the identity of the person who did the shooting was not discovered until later. At the time of the injury, he was alone on his porch, but his children, five or six in number, were in the house. The age of the oldest of them was about fourteen years. After the injury, he called them and they managed to get him in the house. Neighbors and officers, being notified, came in to render assistance. The aid of a man having two young blood hounds was secured. The blood hounds were taken to the point from which the shot seemed to have come, and there they took up the trail and followed it for a distance of about eight miles, to the home of Luke McKinney, the father of the accused. In their pursuit of the trail, the dogs were accompanied by several persons among whom were two deputy sheriffs, two constables, a justice of the peace and the owner of the dogs. Having led the crowd to the front door of the home of Luke McKinney, the dogs were taken behind the house and kept there until London McKinney was aroused and taken from his bed and to a point seventyfive or a hundred yards from the house. Then they were again put upon his trail and went to him and gave manifestations of their identity of him as the person they had been trailing. Thereupon, he admitted he had been at the house of J. G. McKinney, on the previous evening, at about seven o' clock or seven thirty and also that he had fired the shot. After this confession he was placed under arrest and subsequently repeated the admissions. On the trial, he testified in his own favor and there admitted that he had done the shooting with a.22-caliber Winchester rifle, having a magazine capacity of sixteen cartridges, which he had carried from his home and back to it.

There is conflict in the evidence as to what preceded the tragedy, led up to it and may have entered into the purposes and mental attitude of the accused. Before noon of the day of the shooting the wife of J. G. McKinney, who was also the sister of the accused, came to the home of Luke McKinney and remained there until after the shooting. She and her husband both claim she went there merely to visit her father and others of the family. The accused offered to prove she had come to her father's house with bruises on her face, loosened teeth, a severe laceration of the knee and other injuries, and stated that her husband had beaten her and driven her from home. He was not permitted to prove her physical condition at that time. The court, however, permitted him to prove she had said her husband had accused her of things she was not guilty of, and had told her to go to her father's home and stay a few days, until they could get things fixed up; that she had told them of some little troubles she and her husband had had; that she had then asked her father to go and see her husband and endeavor to obtain his consent to her return and effect a reconciliation; that he had refused to do so; and that she had then requested her brother, the accused, to do so, and also to see if her husband was there, and, if not, to take care of the children for the night. He was also permitted to prove the communication by the wife on that occasion, of threats made by her husband against her and all of her family. The threats were to the effect that he had expressed an inclination to go down there and call them all out and shoot them down, one at a time, and that he intended to send her home and get them all together and kill them by blowing up the house with dynamite.

On the witness stand the wife denied communication of such threats, the making thereof and any trouble between herself and her husband. She also denied having requested either her father or her brother to go to her house that night, and knowledge of his having gone there. She admitted she knew he had left the house in the evening, but denied that she knew where he had gone. Although the father and unmarried sister say they knew he had been requested to go, they denied knowledge of his having gone. He...