State v. Luther Wilson

• Decision Date: 02 May 1944
• Citation: State v. Luther Wilson, 37 A.2d 400, 113 Vt. 524 (Vt. 1944)
• Parties: STATE v. LUTHER WILSON
• Court: Vermont Supreme Court

37 A.2d 400

113 Vt. 524

STATE v. LUTHER WILSON

Supreme Court of Vermont

May 2, 1944

February Term, 1944.

Homicide.Self-defense.

1.A motion for a directed verdict and a motion to set aside the verdict are governed by the same rules in a criminal case as in a civil case.

2.In passing upon a respondent's motion for a directed verdict the evidence must be taken in the light most favorable to the State, and the ruling of the trial court denying the motion will be sustained if the evidence, so viewed, fairly and reasonably tends to support the verdict.

3.When, in a homicide case, the evidence tends to show that the respondent was first assaulted, the burden then rests on the State to prove beyond a reasonable doubt that the acts of the respondent were not done in self-defense.

4.The amount of force which one may justifiably use in self-defense is such as reasonably appears to him to be necessary under all the circumstances, and whether he is justified on the particular occasion depends upon whether the jury finds that it reasonably appeared to him that it was necessary to use the force that he did use.

5.A person, when assaulted, can only take life in self-defense when it reasonably appears to him that he is in danger of death or serious bodily harm.

6.Where, in a criminal case, the only direct evidence is that of the respondent, such direct evidence may be met by proper circumstantial evidence.

7.Where motions to set aside and for new trial are addressed to the discretion of the court, such motions are not for review on appeal when it is not claimed that such discretion was withheld or abused.

8.The denial of a motion to set aside a verdict as contrary to law will not be reviewed on appeal when the reason for the motion appears not to have been indicated to the trial court.

SECOND DEGREE MURDER.Trial by jury, Addison County Court, Special Term, September, 1943, Blackmer, J., presiding.Verdict and judgment of guilty.Exceptions by the respondent.

Exceptions overruled.

Frederick W. Wakefield, Jr., for the respondent.

Alban J. Parker,Attorney General, and Wayne C Bosworth, State's Attorney, for the State.

Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS JJ.

OPINION

BUTTLES

The respondent shot and killed his wife, Mabel Wilson, in the small house in Ferrisburg in which they resided, at about 9:45 P. M. or a little later on July 29, 1943.He was indicted by a grand jury for murder in the second degree and upon trial was found guilty as charged.Judgment was rendered and sentence imposed and the respondent comes to this Court upon exceptions to the denial of his motion for a directed verdict seasonably made and the denial of his motion to set aside the verdict and for a new trial.

The respondent and the deceased were alone in the house at the time of the shooting and the former was the only eye witness.The killing was done with a 22 caliber rifle.An autopsy indicated that the bullet entered the body just above the left collar bone, passed through a part of both lungs and lodged just beneath the skin on the right side of the back slightly above the level of the right armpit.The doctor was of the opinion that at the time she was shot the deceased must have been standing or sitting with her left shoulder, or perhaps the entire upper part of the body, bent slightly forward.The respondent had lost his left leg below the knee and wore an artificial leg.The witness Shortsleeve was the first person to arrive at the scene.He found the deceased's body lying on the floor diagonally across the threshold between the bedroom on the ground floor occupied by the respondent and the deceased, and the room used as a kitchen and living room.The respondent was in the bedroom.Officer Harrington, who was the second person to arrive, found the artificial leg in the kitchen at a place where the respondent testified it was put by the deceased prior to the shooting.

The ground of the respondent's motion for a directed verdict was in substance that the evidence did not warrant a finding of guilty beyond a reasonable doubt.This motion as well as the motion to set aside the verdict is governed by the rules applicable in civil cases.State v. Rounds, 104 Vt. 442, 448, 160 A. 249.In passing upon the motion for a directed verdict the evidence must be taken in the light most favorable to the State, and the ruling of the trial court sustained if the evidence, so viewed, fairly and reasonably tends to support the verdict.Tinney v. Crosby, 112 Vt. 95, 101, 22 A.2d 145, and cases cited.

The only defense upon which the respondent relied was self-defense.He contended that he was sitting on the bed with his artificial leg off when his wife started to come into the bedroom armed with a shot gun which was aimed at him; that he thought she intended to shoot him and he shot her to prevent her from doing so.These alleged facts were incorporated into a statement signed by the respondent which the State introduced in evidence.

Since this evidence tended to show that the respondent was first assaulted, the burden was upon the State to prove beyond a reasonable doubt that the acts of the respondent were not done in self-defense.State v. Rounds, 104 Vt. 442, 451, 160 A. 249;State v. Patterson, 45 Vt. 308, 314, 12 Am. Rep. 200.The amount of force which one may justifiably use in self-defense is such as reasonably appears to him to be necessary under all the circumstances, and whether he is justified in the particular occasion depends upon whether the jury find that it reasonably appeared to him that it was necessary to use the force that he did use.State v. Rounds, supra;McQuiggan v. Ladd, 79 Vt. 90, 105, 64 A. 503, 14 L.R.A. (N.S.) 689. A. person, when assaulted, can only take life in self-defense when it reasonably appears to him that he is in danger of death or serious bodily harm.State v. Tubbs, 101 Vt. 5, 23, 139 A. 769.

In the present case a verdict of not guilty would be imperative only if the jury could not reasonably find facts at variance with those upon which the respondent relies, and could not reasonably find that an inference of self-defense does not follow from the facts found.The respondent's argument is based mostly upon his own testimony, but this direct testimony might, of course, be met by circumstantial evidence.Haskins v. Haskins Est., 113 Vt. 466, 35 A.2d 662.SeeState v. Rounds, 104 Vt. 442, 451, 160 A. 249.Especially would this be true in regard to the respondent's frame of mind.

Among the items of evidence by reason of which the jury might consider the respondent's testimony discredited in one or both of the above particulars are the following.That at the time of the shooting the respondent was sitting on the edge of the bed about midway between the head and the foot is not questioned.In the statement above referred to the respondent stated that he saw his wife "coming toward the bedroom I was in...