State v. McCauley
| Decision Date | 01 July 1947 |
| Docket Number | 9924. |
| Citation | 43 S.E.2d 454,130 W.Va. 401 |
| Parties | STATE v. McCAULEY. |
| Court | West Virginia Supreme Court |
[Copyrighted Material Omitted]
Syllabus by the Court.
1. The rejection of irrelevant testimony offered by a defendant in a criminal trial is not ground for setting aside a verdict of guilty.
2. The admission in a trial for murder of immaterial testimony which clearly results in no prejudice to defendant, is not reversible error.
3. Inadvertent use of a word, in one instance, by counsel propounding a question, which word tends to reflect on the character of a defendant in a criminal case, and which word is immediately disavowed and repudiated by said counsel, and an unobjectionable word substituted therefor, is not ground for a mistrial.
4. Statements of counsel not made a part of the record in a murder trial will not be considered by this Court on review.
5. The use of the words 'wilfully, deliberately, maliciously and premeditatedly' in an instruction defining murder of the first degree, given at the request of the State negatives the idea of mental incapacity on the part of defendant at the time of the alleged offense.
6. In a trial on an indictment for murder, the burden of proving defendant's insanity rests upon him, and must be established to the satisfaction of the jury by a preponderance of the evidence; and an instruction incorporating that principle is not erroneous.
7. 'A man is presumed to intend that which he does, or which is the immediate or necessary consequence of his act; and if the prisoner with a deadly weapon in his possession without any or upon very slight provocation gives to another a mortal wound, the prisoner is prima facie guilty of willful, 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, he is guilty of murder in the first degree.' Pt. 11, Syl., State v. Cain, 20 W.Va. 679.
8. A member of the Department of Public Safety of the State of West Virginia may, without a warrant, arrest any person who he believes, upon reasonable grounds, has committed a felony.
9. "A verdict of guilty in a criminal case will not be reversed here because of error committed by the trial court, unless that error is prejudicial to the accused.' State v. Rush, 108 W.Va. 254, 150 S.E. 740.' Pt. 3, Syl., State v. Corey, 114 W.Va. 118, 171 S.E. 114.
Edward J. Ryan, of Cumberland, Md., and Shores & Shores, of Keyser, for plaintiff in error.
Ira J. Partlow, Atty. Gen., and J. Chandler Curd, Asst. Atty. Gen., for defendant in error.
Mark Roy McCauley was indicted, tried and convicted in the Circuit Court of Mineral County for the murder of Joseph Horne, a sergeant in the Department of Public Safety of the State of West Virginia.
To a judgment sentencing him to be executed, he prosecutes this writ of error.
The theft of a motor truck, owned by Dodd & Archer and worth approximately sixty-five hundred dollars, was reported to deceased for his official action. On September 9, 1946, having been informed that defendant had taken the truck to the vicinity of Emoryville, Sergeant Horne, accompanied by the Sheriff of Tucker County and the sheriff's son, went to that town, where they found the truck parked near the home of Jim Harding, with the name of the owners removed by scraping and burning. The engine serial number and trade-mark of the vehicle were also removed and an attempt had been made to repaint the truck body.
The officers stopped at the home of Harding, and were there informed that defendant had gone in Harding's automobile to Keyser, West Virginia, and that his return was expected within a short time. Deceased, leaving the sheriff and his son at the Harding home, proceeded to a point near Keyser, where he encountered defendant, and according to defendant's statement, hereinafter mentioned, arrested him, but did not search defendant's person. Defendant and the deceased returned to the Harding home and, on their arrival there, proceeded to the rear of the house. About the time they entered the kitchen of the Harding home, Horne requested defendant to give him the keys to the motor truck, whereupon an altercation ensued, during which defendant shot the officer twice, and also shot the sheriff. Defendant then went upstairs in the Harding home, secured a shotgun, fired upon and wounded the son of the sheriff. The deaths of Horne and the sheriff occurred shortly after the shooting.
Defendant fled to the woods, and about nine-thirty p. m., on September 10, 1946, he was apprehended near the Harding home by two members of a posse. At the time he was apprehended, he was carrying a pistol, a shotgun, both of which he was forced to discard, and a bundle in which were various articles for personal use, together with a license plate which had been attached to the motor truck. Defendant was taken to Clarksburg by the officers having his custody, where he made a statement in which he admitted the killing of the two officers and the wounding of the sheriff's son. Defendant's statement is to the effect that when Horne asked him for the keys to the motor truck, defendant asked the sheriff if he had a warrant for his arrest. The sheriff answered by stating that no warrant was necessary. Defendant further stated that he felt the officers were infringing upon his rights; that he was angry; and that they did not know the whole truth about the theft of the truck. At this time, according to the statement, Horne started to search defendant's pockets for the keys, and, in doing so, ascertained that defendant was carrying a revolver. Whereupon defendant drew the pistol and shot Horne twice. The sheriff attempted to use his revolver, but was shot by defendant before he could do so.
The testimony of the only eyewitness to the shooting is to the effect that as defendant and deceased came in the door of the Kitchen, Horne grabbed defendant by the arm, and asked him if he had the keys to the truck in his pocket. A struggle ensued, during which defendant reached for his gun. At this point the witness fled from the room and, as she ran outside the door, she heard the shots.
At the trial the State proved by medical testimony that Horne's death was caused by the gunshot wounds inflicted on him.
The circumstances under which defendant was apprehended were shown and there was testimony to the effect that one of the bullets found in the body of deceased had been fired from the revolver discarded by defendant at the time of his apprehension. It was further testified that prior to the shooting, defendant had threatened to kill Horne.
Although the killing was admitted, defendant entered a plea of not guilty and only offered, in support of his plea, evidence to the effect that he was insane at the time of the killing. Defendant's father, brother, former wife, aunts and sisters testified that defendant was heedless of the rights of others; that he possessed an overbearing disposition; and that, in many instances, he would act without regard as to whether his action was right or wrong. One sister attempted to testify concerning an incident involving an attack made on her by a larger boy, when defendant was a child of nine years; and that defendant had attempted to defend her but could not because he was overpowered by the larger boy. The trial court refused to admit such testimony.
Two psychiatrists were introduced in behalf of defendant, one of whom stated that from his examination of defendant and from hearing the testimony adduced in open court, he was of the opinion that defendant did not know the difference between right and wrong. The other pyschiatrist was of opinion that he knew the difference between right and wrong, his conception in that respect being equivalent to that of a child eleven or twelve years old, but that he was heedless of the consequences of carrying out any undertaking he wished to accomplish.
In rebuttal the State offered the testimony of a number of lay witnesses, some of whom had engaged in business transactions with defendant. These witnesses testified that they had known defendant for various periods of time; that they had observed his conduct; and that they had not observed anything to indicate that defendant was mentally unsound. Another psychiatrist, testifying in behalf of the State, stated that, after having examined defendant for a period of about an hour and forty-five minutes, and after having heard the evidence previously introduced by the State and the defense, he was of opinion that defendant 'has sufficient intelligence and judgment to tell the difference between right and wrong', even though his mentality and judgment are subnormal.
On the foregoing evidence the jury returned a verdict of murder of the first degree, and, after overruling a motion to set the verdict aside, the trial court sentenced defendant to be hanged.
Assignments of error are classified as: (1) those relating to the action of the trial court in admitting and rejecting evidence; (2) alleged prejudicial conduct on the part of the prosecuting attorney and counsel assisting in the prosecution; (3) giving, refusing and modifying instructions; (4) refusing to permit counsel to argue to the jury that the attempted arrest made by deceased was illegal; and (5) in refusing to set aside the verdict as being contrary to the law and the evidence.
Another assignment of error was predicated on the refusal of the trial court to set aside the verdict on the grounds of after-discovered evidence. But before the case was submitted for decision by this Court, it was ascertained that such evidence did not exist, and that ground was...
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