State v. McMillion
| Citation | 138 S.E. 732,104 W.Va. 1 |
| Decision Date | 31 May 1927 |
| Docket Number | 5771. |
| Parties | STATE v. McMILLION. |
| Court | West Virginia Supreme Court |
Submitted April 27, 1927.
Rehearing Denied July 12, 1927.
Syllabus by the Court.
An indictment for murder, drawn in accordance with the from prescribed by statute (Code, c. 144, § 1), alleging that the crime was committed "on the _____ day of September 1925," and shown by the records of the court to have been returned on the 16th day of September, 1925, and its language plainly importing that the offense was committed prior to its finding, is good on motion to quash.
As a general rule, it is no ground of challenge for cause and does not disqualify a juror simply because he belongs to some association or order, in the absence of a showing that the association or order is in some way interested in or connected with the prosecution of the case, where said juror otherwise qualifies upon the voir dire examination to serve as such.
The question presented as to the qualification of jurors is one of mixed law and fact, and the finding of the trial court upon that issue will not be set aside unless the error is plainly manifest.
The general rule is that, where a crime is divided into degrees if the court commits error in instructing the jury as to the higher degree of such crime, and they return a verdict of guilty of a lower degree as to which they were properly instructed, the defendant cannot complain.
It is peculiarly within the province of the jury to weigh the evidence upon the question of self-defense, and the verdict of a jury adverse to that defense will not be set aside unless it is manifestly against the weight of the evidence.
Under his plea of self-defense, the burden of showing the imminency of the danger rests upon the defendant. No apprehension of danger previously entertained will justify the commission of the homicide; it must be an apprehension existing at the time the defendant fired the fatal shot.
Error to Circuit Court, Fayette County.
G. C. McMillion was convicted of second degree murder, and he brings error. Affirmed.
Harold W. Houston, of Charleston, and W. R. Bennett, of Fayetteville, for plaintiff in error.
Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.
G. M McMillion was tried in the circuit court of Fayette county for the murder of one Estel Hatcher. He was found guilty of second degree murder, and sentenced to a term of 8 years in the penitentiary, and now brings error to this court.
From the case made by the state, it appears that Goff Odell, a state prohibition officer, had secured a search and seizure warrant from C. M. Evans, a justice of Fayette county, for a Studebaker automobile operated by one Pat Flint, who, Odell was informed, was operating a still and disposing of intoxicating liquors in the neighborhood of John H. Hatcher, the father of the deceased. This officer informed the elder Hatcher that he would notify him of the time when he would come into the neighborhood to execute the warrant, and requested Hatcher to have some local officer present to assist him. Hatcher, who was interested in apprehending the bootlegger, upon the receipt of a letter from Officer Odell to the effect that the latter would go to Point Lookout, where the main road is intersected by the Harris road, and watch for the car operated by Flint, on the evening of September 10, 1925 (the date of the homicide), arranged with John D. Skaggs, a constable of the county, to go with him to meet Odell for the purpose of watching for and apprehending Flint. So, on the appointed evening, Hatcher and his son, Estel, accompanied by the constable, drove to the point designated, which is between 2 and 3 miles from the Hatcher home and store. Upon reaching the designated spot, Hatcher drove his car a short distance out the Harris road and parked it. Officer Odell, Constable Skaggs, both armed, and young Hatcher, who was unarmed, stationed themselves along the side of the main road near its intersection with the Harris road. They watched for a car driven by Flint. Two cars were stopped, but found not to be the one wanted. They claim that they were in this position when the defendant's car, hereinafter referred to, started forward, after it had been passed by a certain car which had previously been stalled. As defendant's car approached the place where the officers were stationed, Estel Hatcher remarked, "There is the car!" meaning Flint's car, and Officer Skaggs called, "Halt!" Whereupon defendant began to shoot from the side of his car. Young Hatcher immediately fell, fatally wounded by three bullets. The officers then returned the fire, and the defendant's car speeded away. Young Hatcher was taken to the Oak Hill Hospital, where he died the following day.
The defendant relied on self-defense. To support his claim that he believed himself to be in imminent danger of death or great bodily harm at the hands of a mob at the time he fired the fatal shot, and that such shot was fired in good faith for the sole purpose of protecting his life and limb, he introduced a typewritten notice, signed "K. K. K.," which, he states, was served on him at his home one night about 4 months prior to the homicide, by 80 hooded men. This notice, purporting to have been given at the instance of 6,000 determined Klansmen, directs that he resign his office as justice of the peace and leave the county within 30 days. This alleged demonstration occurred a few days after a colored man, charged with a grave offense against a white woman, had escaped from the custody of the defendant, while the latter was conveying him to the county jail at Fayetteville. However, the defendant in his testimony said that this hostile demonstration was a political scheme to drive him out of the taxi business, and that the escape of the colored man was taken as a pretext. On the evening of the homicide, defendant shows that he was returning to his home at Winona from Oak Hill, where he had gone that afternoon to attend Squire Woods' court, where his son, Richard, and Ernest Horrocks were wanted for some road violation. He was accompanied by his son, Richard, Caleb Horrocks, Ernest Horrocks (son of Caleb Horrocks), and Gordon Bandy. On the return trip he stopped at Fayetteville at a street fair until some time after dark, when he and his party proceeded toward home in a touring car driven by defendant. Some distance out from Fayetteville, and near where the officers and deceased were stationed, defendant and his party observed an auto across the road ahead of them. Caleb Horrocks left the car of defendant to inquire concerning the reason for the car being across the road. Defendant at this juncture gave the wheel over to his son, Richard, and got into the back seat of his car. The man in the stalled car was having trouble, and Horrocks came back and called to defendant and his party that the man was all right, defendant having previously expressed his opinion that it was a "holdup," and that he was not going to stand for "any damned mistreatment." The car was removed from its position across the road by the aid of the elder Horrocks, and proceeded in the direction of Fayetteville until it had passed beyond defendant's car some little distance. According to defendant's testimony, some one hallooed "Halt!" and began firing toward his car from the direction of the car which previously had been stalled across the road; that defendant drew and leveled two pistols over the edge of his car and returned fire (some 10 shots) in the direction of the hostile fire; that he was shot in the arm; that he then proceeded home and got in touch with the county officers.
Ernest Horrocks, an occupant of defendant's car, sustains the state's witnesses in their contention that defendant's car was going forward at the time the shots were fired, and that the defendant fired the first shots-firing "just as quick as the word [halt] was out of the fellow's mouth." Caleb Horrocks likewise corroborates the state to the effect that defendant's car was moving when the shooting occurred, and, while the reports of the first shots came from the opposite side of the car from him, he could not tell whether the same were fired on the outside or not, but that he could only see the flash. On being asked whether the car was moving rapidly or slowly at the time the first shots were fired, he replied that it was "moving very slowly, but he put the gas on it then and went just as hard as he could." Horrocks endeavored to board the car as it passed, but failed. The defendant's contention as to who fired the first shots and that they came from behind the stalled car, which had just passed, is supported by his son, Richard. Bandy, a young lad who lived with defendant, testified that upon seeing the stalled car ahead of them the defendant told Caleb Horrocks that it was a "holdup" and that he was not going to "take no rough treatment"; that Caleb got out and went up and saw who this fellow was, stayed there a good little bit and came back and told defendant that "That fellow is all right"; and that Caleb then went back up to help him start the car. Bandy claims the defendant's car was standing still when they were fired upon. He states that he had taken a rifle, which the defendant had placed in his car before leaving home that afternoon, in his hands at the direction of the defendant, and says that after the shooting began he climbed over the door and got on the fender of the car, tried to cock the rifle but failed, fell off the fender, and ran into the bushes (dropping his rifle as he ran), where he secreted himself for the remainder of the night.
Testimony was offered by defendant to the effect that he and certain officers, on visiting the...
To continue reading
Request your trial