State v. Manns.

• Decision Date: 15 December 1900
• Citation: 48 W.Va. 480
• Court: West Virginia Supreme Court
• Parties: State v. Manns.

48 W.Va. 480

State

v.Manns.

Supreme Court of Appeals of West Virginia.

Decided December 15, 1900.

1. Criminal Law Change of Venue.

Known prejudice and ill feeling towards a prisoner, extending over a large portion of a county, owing to his agency and service of process in behalf of certain persons claiming the lands of many residents of such county by superior title, and about which there is much unsettled litigation pending, is good cause for a change of venue, especially during the heat of the excitement engendered by the offense with which the prisoner is charged, (p. 481).

2. Prejudice Continuance.

Such prejudice, ill feeling, and excitement furnish good grounds for a continuance, (p. 482).

3. Instructions Tending to Mislead.

Instructions not justified by the evidence and tending to mislead the jury should not be given, (p. 483).

4. Erroneous Instructions.

Instructions which do not fully state the law on a given point are erroneous and should not be given, as they tend to mislead the jury. (pp. 483, 484).

5. Homicide Self-defense.

While the court may instruct the jury that the burden is on the prisoner to show by a preponderance of evidence that the killing charged was in self-defense, yet it should add thereto, in effect, that such defense may be fully sustained by the evidence for the State, or by all the evidence and circumstances in the case. (p. 485).

6. Instructions Supporting Evidence.

Instructions asked by the accused, presenting his defense, and which the evidence in any degree tends to support, should be given, (p. 487).

Error to Circuit Court, McDowell County.

Anthony J. Manns was convicted of murder, and brings error.

Reversed.

Flournoy, Price & Smith. Strother & Stokes, and Chapman & Gillespie, for plaintiff in error.

Edgar P. Rucker, Atty. Gen., and L. C. Anderson, for the State.

Dent, Judge:

At the October term, 1899, of the circuit court of McDowell County, Anthony J. Manns was indicted and tried for the killing of C. K. Harris in the September previous, and found guilty of murder in the first degree and sentenced to be hung. The circuit court refused him a writ of error. This Court granted the same. The first error assigned is the refusal of the prisoner's application for a change of venue. The grounds are that owing to his service of numerous writs as a deputy marshal of the "United States court in connection with certain suits of Henry C. King and Max Lansburg touching large surveys of land and affecting a large number of claimants and also his acting as agent for said King and Lansburg, there was a strong public prejudice against him extending throughout a large portion of McDowell County which would prevent his gelling a fair trial in said county. The testimony of the witnesses fully sustains the existence of this prejudice, although a number of them state they believe an impartial jury could be found. He further claimed that this prejudice was greatly augmented and aroused by the killing, which was so recent that the excitement caused thereby had not yet subsided. If there is any case in which a change of venue should be had it is in one of this character. The deep seated prejudices growing out of these; large claims has notonly permeated the communities in which such lands are situated but has been felt far beyond them, and in the county of McDowell while the excitement over the killing was unabated would be though a silenit yet a potential influence interfering with the impartial administration of justice, and thus denying to the prisoner that fair trial which the law of the land promises him. The depth and extent of such prejudice can never be known from surface indications, but it may secretly extend to the hounds of the county through sympathy. State v. Greer, 22 W. Va. 800; State v. Douglass, 41 W. Va. 537. The same reasons were presented on a motion for a continuance which the court overruled. The prejudices of the human heart are a dangerous thing to deal with, especially in times of passion and excitement. Their influences are deadly to right and justice.

They breed corruption, false swearing, perjury, persecution and lawlessness of all kinds. Through them the foulest of crimes have been committed and man's history by reason thereof is black with many infamous murders committed in the name of justice and claimed to be under the sanction of the Deity. Where a court has reason to believe that such dangerous prejudices exist, it should move with great caution, and not permit itself to be caught in the whirlpool thereof. The court compelled the prisoner to go to trial, within less than a month of the killing, and as is plainly shown while the excitement caused thereby was still at fever Heat. The prisoner sought to abate the indictment because of an alleged illegal grand jury, and tried to quash the venire for the petit jury, no doubt seeking any excuse sufficient to secure a continuance. He also objected to certain jurors who had made up and expressed an opinion, and while it would require evidence to change such opinion said they could give the prisoner a fair trial. Where prejudice exists such jurors to say the least are dangerous, for they may mean by a fair trial a certain hanging.

On the trial the prisoner sought to prove the dangerous character of the deceased when intoxicated. This the court refused to permit. Yet the evidence tended to show the prisoner did the killing in self-defense of his home, himself and his family. Hamson v. Commonwealth, 79 Ya. 374; Jackson v. Commonwealth, Va. S. R. vol. 2, 332; Wharton's Cr. EV., s. 84; 2 Bishop's Cr. Procedure, ss. 625, 629.

It seems hardly necessary to prove that a drunken man armed with a revolver and shooting into the prisoner's house was a person of dangerous character when intoxicated. It is certainly a matter of common knowledge in a civilized community that a man full of "righting" whiskey and armed with a loaded revolver is per se a dangerous combination.

There are some other exceptions to the rulings of the court which are unnecessary to comment on at this time, as they may all be eliminated and avoided along with the foregoing in a new trial.

The principal assignment of error calling for consideration relates to the instructions given and refused by the court.

The evidence showed that Dr. C. K. Harris was intoxicated to a pugnacious degree and that he began discharging his revolver indiscriminately. That he went in his own house shoot- ing his revolver. When he reached his office, being a rear room upstairs, he began shooting at Manns' turkeys. Mrs. Manns coming out of her house objected, and he turned on her. She fled into the house. Then she and the children being afraid of Harris left the house. When he went to the saloons, ostensibly for more whiskey, they returned to their house. Mr. Manns the prisoner, came home about this time and asked his wife why supper was not ready. She told him she was afraid to get it on account of Harris' conduct. He got it himself. While they were eating, Harris returned and began shooting again. He shot into the house, and the ball caused something to strike Manns' face. He says he thought he was shot. He immediately arose, his family scattering, and trying to hide from Harris' shooting, took his revolver in his hand, walked to the corner of the house, and fired the fatal shot. There was also evidence showing that on former occasions Harris when drunk had attacked Manns, once in his own house, and once in the street, and that there had been ill feeling between them for some time, giving rise to some threats. On this showing at the instance of the State, the court gave the following instructions, to which the prisoner objected:

"The court instructs the jury that a man is presumed to intend that which he does, or which is the immediate or necessary consequence of his acts, and if the jury believe from the evidence and all the surrounding circumstances in evidence in this case, and that beyond a reasonable doubt, that the prisoner, A. J. Manns, with a deadly weapon in his possession, without any, or upon very slight, provocation, shot and killed C. K. Harris, alias Dr. Harris, then the prisoner is prima facie guilty of wilful, deliberate and premeditated killing, and the necessity rests upon him of showing extenuating circumstances, and unless he proves such extenuating circumstances, or the circumstances appear from the case made by the State, they will find him guilty of murder in the first degree, as charged in the indictment."

"Upon a trial for murder the use of a deadly weapon being proved, and the prisoner rely on self-defense to excuse him for the use of the weapon, the burden of showing such excuse is on the prisoner, and to avail him such defense must be proven by a preponderance of the evidence."

The first is the usual instruction given in almost every case of homocide arising out of a mutual altercation, and it propounds the law properly when sustained by the evidence, but when it is in the face of and conflicting with the evidence it has a tendency to mislead the jury. It uses the language, "Without any or slight provocation," when the evidence shows that the prisoner was suffering from great provocation. A drunken man acting in a lawless manner, by shooting a revolver from his house, had scared his wife and her children away from home, and then wnen the family were eating their supper, had begun shooting into the house towards the table where they were seated, and yet the jury is led to believe that this, if.any, is but slight provocation in the eyes of the law. Jurors look to the court for advice as to...