State v. Mcmillion, (No. 5771.)

CourtSupreme Court of West Virginia
Writing for the CourtWOODS
Citation138 S.E. 732
PartiesSTATE. v. McMILLION.
Decision Date31 May 1927
Docket Number(No. 5771.)

138 S.E. 732

STATE.
v.
McMILLION.

(No. 5771.)

Supreme Court of Appeals of West Virginia.

May 31, 1927.


Rehearing Denied July 12, 1927.

(Syllabus by the Court.)
[138 S.E. 733]

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.

WOODS, J. 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

[138 S.E. 734]

by three bullets. The officers then returned the fire, and the defendant's ear 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...

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53 practice notes
  • State v. Ashcraft, No. 15822
    • United States
    • Supreme Court of West Virginia
    • November 10, 1983
    ...nor expressed any opinion, who are free from bias or prejudice, and stand indifferent in the case." State v. McMillion, 104 W.Va. 1, 8, 138 S.E. 732, 735 The traditional means for vindicating this right is examination of prospective jurors on their voir dire, i.e. on their oath "to speak th......
  • State v. White, No. 11–1336.
    • United States
    • Supreme Court of West Virginia
    • June 7, 2013
    ...will not be set aside unless it is manifestly against the weight of the evidence.’ Syllabus point 5, State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927), [ overruled on other grounds, State v. Harden, 223 W.Va. 796, 679 S.E.2d 628 (2009) ].” Syl. Pt. 2, State v. Whittaker, 221 W.Va. 117, 6......
  • State v. Miller, No. 23155
    • United States
    • Supreme Court of West Virginia
    • June 14, 1996
    ...prejudice or bias is shown. State v. Ashcraft, 172 W.Va. 640, 647, 309 S.E.2d 600, 607 (1983), quoting State v. McMillion, 104 W.Va. 1, 8, 138 S.E. 732, 735 (1927). A trial judge "has a serious duty to determine the question of actual bias[.]" See Dennis v. United States, 339 U.S. 162, 168,......
  • State v. Harlow, No. 10436
    • United States
    • Supreme Court of West Virginia
    • June 24, 1952
    ...defendant to establish, by a preponderance of the evidence, that the shooting was done in self defense. State v. McMillion, 104 W.Va. 1, 138 S.E. 732. Upon careful examination of all the evidence, we reach the conclusion that the verdict returned by the jury is [137 W.Va. 263] amply support......
  • Request a trial to view additional results
53 cases
  • State v. Ashcraft, No. 15822
    • United States
    • Supreme Court of West Virginia
    • November 10, 1983
    ...nor expressed any opinion, who are free from bias or prejudice, and stand indifferent in the case." State v. McMillion, 104 W.Va. 1, 8, 138 S.E. 732, 735 The traditional means for vindicating this right is examination of prospective jurors on their voir dire, i.e. on their oath "to speak th......
  • State v. White, No. 11–1336.
    • United States
    • Supreme Court of West Virginia
    • June 7, 2013
    ...will not be set aside unless it is manifestly against the weight of the evidence.’ Syllabus point 5, State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927), [ overruled on other grounds, State v. Harden, 223 W.Va. 796, 679 S.E.2d 628 (2009) ].” Syl. Pt. 2, State v. Whittaker, 221 W.Va. 117, 6......
  • State v. Miller, No. 23155
    • United States
    • Supreme Court of West Virginia
    • June 14, 1996
    ...prejudice or bias is shown. State v. Ashcraft, 172 W.Va. 640, 647, 309 S.E.2d 600, 607 (1983), quoting State v. McMillion, 104 W.Va. 1, 8, 138 S.E. 732, 735 (1927). A trial judge "has a serious duty to determine the question of actual bias[.]" See Dennis v. United States, 339 U.S. 162, 168,......
  • State v. Harlow, No. 10436
    • United States
    • Supreme Court of West Virginia
    • June 24, 1952
    ...defendant to establish, by a preponderance of the evidence, that the shooting was done in self defense. State v. McMillion, 104 W.Va. 1, 138 S.E. 732. Upon careful examination of all the evidence, we reach the conclusion that the verdict returned by the jury is [137 W.Va. 263] amply support......
  • Request a trial to view additional results

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