State v. Mclane, 9476.

• Decision Date: 09 November 1943
• Docket Number: No. 9476.,9476.
• Parties: STATE. v. McLANE.
• Court: West Virginia Supreme Court

27 S.E.2d 604

STATE.
v.
McLANE.

No. 9476.

Supreme Court of Appeals of West Virginia.

Nov. 9, 1943.

[27 S.E.2d 605]Syllabus by the Court.

1. It constitutes error to refuse to strike out testimony of a statement made as a part of a dying declaration as to matters of fact not relevant to the issue being tried.

2. It is error to admit testimony, over objection, to the effect that an accused in a murder trial was afflicted with a disease in order to show that he was of a nervous temperament in the absence of proof showing that nervousness is the usual result of such disease.

3. An accused formerly tried for murder in the first degree and convicted of murder in the second degree is not twice placed in jeopardy for first degree murder by an instruction, based upon proper evidence, informing the jury concerning the elements of that offense and telling it that second degree murder is the highest offense for which a verdict can be returned.

Error to Circuit Court, Kanawha County.

R. H. McLane was convicted of murder in the second degree, and to review an order of the circuit court, refusing a writ of error to a judgment of the intermediate court on the verdict, he brings error.

Reversed, new trial awarded, and case remanded to the intermediate 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.

KENNA, Judge.

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

[27 S.E.2d 606]

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...