State v. McLane
| Decision Date | 09 November 1943 |
| Docket Number | 9476. |
| Citation | 27 S.E.2d 604,126 W.Va. 219 |
| Parties | STATE v. McLANE. |
| Court | West Virginia Supreme Court |
John T. Copenhaver, Lee, Blessing & Steed and Howard B. Lee, all of Charleston, for plaintiff in error.
Ira J. Partlow, Acting Atty. Gen., Ralph M. Hiner, Asst. Atty Gen., and J. Blackburn Watts, Pros. Atty., of Charleston, for defendant in error.
Following his conviction of murder in the second degree R. H. McLane was sentenced to confinement in the penitentiary by the Intermediate Court of Kanawha County for the indeterminate term of not less than five nor more than eighteen years, and to the order of the Circuit Court of Kanawha County refusing a writ of error to that judgment, this writ of error was awarded. There are nine assignments of error, six being particular and the others general, and since there are no material controversies over the facts involved an outline of the relevant occurrences as shown by the record reveals a proper setting for a discussion of the errors assigned.
In September, 1940, the accused, R. H. McLane, and the deceased Carl Burford, both had business establishments on Seventh Avenue in the first block west of Patrick Street in Charleston. They were competitors in the retail poultry and egg business and had on two previous occasions been partners in that business at approximately the same location, Burford having bought McLane's interest in their last partnership and having continued in the same business at the partnership stand. McLane in formal compliance with a covenant contained in the bill of sale to Burford that he would not engage in the same business for a period of one year had gone to work in the same block for his brother in a like establishment recently acquired by that brother. Burford apparently regarded McLane's conduct as a breach of covenant, although the trouble between the two apparently originated before they became competitors. Having previously dissolved and then re-formed their partnership in the spring of 1939 they had an altercation at their place of business in which Burford, a man weighing one hundred ninety pounds struck McLane with an empty bottle evidently in resentment of McLane's protest over a drinking party he found Burford conducting in their place of business. The blow caused copious bleeding and McLane escaped to his home which was in the immediate neighborhood. Here he determined to go to a hospital for treatment and upon leaving the house in the darkness Burford shot him, discharging both barrels of a shotgun. As a consequence the accused lost his right eye and was confined for several weeks. Upon his recovery he executed a bill of sale to Burford covering his interest in the business, releasing all claims for damages against Burford and covenanting not to compete for one year. In the meantime McLane's brother had opened a similar establishment in the same block, and when able the accused went to work for him.
Prior to these occurrences and perhaps during them admitted improper relations existed between Burford's wife and the accused, although the record does not show to what extent, if at all, Burford was informed concerning them.
After the final dissolution of their partnership following the shooting of McLane by Burford, the latter frequently threatened McLane's life, calling him on the 'phone and driving slowly past his home for that purpose. Apparently Burford terrorized him by regular threats, including a telephone conversation on the day of the homicide. McLane on several occasions complained to the police department.
Around twelve-thirty p. m. on September 17, 1940, Burford called McLane at his place of business and told him that he was "coming". The accused testified that soon after having received the threatening telephone call from Burford, the accumulated effect of which, together with past threats, shattered his nerves, he armed himself with a thirty-eight revolver and started home. He first looked toward Burford's place of business and did not see Burford. As he stepped onto the sidewalk outside his place of business he looked first to the left, and after having done so turned his head to look in the direction of his bad eye. He suddenly saw Burford within ten feet of him and immediately Burford told him to run. McLane says that Burford "throwed" his right hand toward his right trousers pocket where McLane knew he was accustomed to carry a gun. Feeling in imminent danger of death or great bodily harm, McLane drew the revolver that he was carrying and emptied it into Burford's body, firing five times in quick succession.
The State's version of the shooting is that it did not occur upon the sidewalk, though that is where Burford was when shot. The only other eyewitnesses were three men, one in a truck facing down Patrick Street, one on Patrick Street sidewalk with a pile of empty egg crates between him and the door of McLane's place of business when the first two shots were fired and for that reason seeing only the last three, and another walking down Patrick Street on the sidewalk. These witnesses are in substantial agreement though exactly the same set of circumstances was not observed by each. The statements of all three conflict materially with that of McLane. Two of them say that the firing of the shots occurred in McLane's place of business, his hand with the revolver in it protruding from the half-open door without exposing his body to view. They are in agreement to the effect that two shots were fired very close together and, after a brief pause, were followed by three in rapid succession, the inference that the State contends...
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