State v. Meadows.

• Decision Date: 19 November 1881
• Citation: 18 W.Va. 658
• Parties: State v. Meadows.
• Court: West Virginia Supreme Court

18 W.Va. 658

State

v.Meadows.

Supreme Court of Appeals of West Virginia.

Decided November 19, 1881.

1. Where a witness is introduced to impeach the general reputation of an-other "witness for truth and veracity in his neighborhood, and he slates, that he is acquainted with his general reputation in that regard, that it is bad, and that he would not believe him on oath, he is a competent witness, notwithstanding he can not say he has heard a majority of his neighbors speak of his character in that regard.

2. Having made those statements he is competent, and as to what his opinion is founded on is a matter for cross-examination and for the consideration of the jury as to the weight to be given to his testimony,

3. A witness having in answer to the usual questions stated, that he was ac-quainted with the general reputation of another witness for truth and veracity, that that reputation was bad, and that he would not believe him on oath, it is competent to ask him, whether he had. ever heard, a majori ty of his neighbors speak of his character.

4. It is competent to ask such a witness, if his opinion is made up from his own knowledge, or from what he has heard the neighbors say.

5. A person is indicted for shooting another with intent to maim, disfigure, disable and kill him, and under \ 1 ch. 20 Acts 1881, takes the stand as a witness in her own behalf, it is competent to ask her, with what intent she shot at the person she tried to shoot.

6. On the trial of an indictment for maliciously or unlawfully shooting a person " with intent to disfigure, disable and kill" him it is error to instruct the jury, that if they believe the shooting was done "with intent to maim, disfigure, disable or kill him, or to cause him bodily injury, ''1 they must find a verdict of guilty.

7. It is not error for the court to instruct the jury on such an indictment, that under §22 ch. 151) of the Code, they can acquit of the felony and find the prisoner guilty of the attempt to commit such felony.

8. If A is indicted for shooting C with intent to maim, disfigure, disable and kill him, and the proof is, that he shot at B and missed him and accidentally hit C, he can be convicted on such indictment for shooting C with intent to maim, disfigure disable and kill him.

9. If A be indicted for an attempt to shoot C with intent to maim, disfigure, disable and kill him, and C is not in fact shot, and the proof is, that the attempt was to shoot B and not 0, he cannot be convicted of an attempt to shoot 0.

Writ of error to a judgment of the circuit court of the county of Boone, rendered on the 9th clay of April, 1881, in an action in said court then pending, wherein the State of West Virginia was plaintiff, and Artemisia Meadows was defendant, allowed upon the petition of the said Meadows.

Hon. D. E. Johnston, judge of the ninth judicial circuit, rendered the judgment complained of.

The facts of the case appear in the opinion of the opinion of the Court.

W. E. Chillon, Jr., for plaintiff in error, cited the following authorities: 1 Greenl. Ev. § 461; 2 Phil. Ev. (4th Am. ed.) 955; Stephen's Dig. "Ev." Part, III, Art. 133; 5 W. Va. 510; 1 Arch. Cr. Pr. & PI. 639, 640; Code, ch. 144, § 9; 2 Arch. Cr. Pr. & PI. (6th ed.) 263, 2G4; Code, ch. 152, §§ 1, 9, 22; 1 Russ. on Crimes (5th ed.) 740, 741; II W. Va. 703; 9 Gratt, 485; 1 Bish. Cr. I/aw § 735; Id. § 97; 1 Bish, Cr. Pr. § 485; Id. § 1060; 1 Hawley Am. Cr. Rep. 249; Const. W. Va. Act III, § 5: Const. U, S. 5th Amendment,

Joseph E. Chillon for defendant in error.

Patton, Judge, announced the opinion of the Court:

Artemisia Meadows was indicted in the circuit court of Boone county under section 9, chapter 144 of the Code. That section provides: "If any person maliciously shoot, stab, cut or wound any person, or by any means cause him bodily injury, with intent to maim, disfigure, disable or kill, he shall * * * be punished by confinement in the penitentiary not less than two nor more than ten years. If such act be done unlawfully but not maliciously with the intent aforesaid, the offender shall at the discretion of the jury cither be confined in the penitentiary not less than one nor more than five years or be confined in jail not exceeding twelve months and fined not exceeding $500.00." She was charged in the indictment with maliciously shooting one Francis M. Meadows with the inter! to maim, disfigure, disable and kill him. The indictment is in the usual form under the statute. On the 9th day of April, 1881, the case was tried by a jury, which rendered a verdict. "We the jury find the prisoner not guilty of the felony charged in the indictment; but wre find the prisoner guilty of an attempt to commit the felony charged in the indictment and assess her fine at $100.00 and fix the term of her imprisonment at six months in the county jail." The prisoner moved the court in arrest of judgment and for a new trial; but the court overruled both motions and gave judgment against the accused for the amount of said verdict, and ordered her to be confined in the county jail for the period of six months.

From this judgment of the court, she obtained a writ of error to this Court:

In the progress of the trial four bills of exceptions were taken in behalf of the prisoner, which will be noticed in the order, in which they were taken. The first bill states in substance, that a witness was introduced in behalf of the prisoner to impeach the general reputation of one of the prosecuting witnesses for truth and veracity, "who testified on his examination in chief, that he knew Francis Meadows, commonly called Dock Meadows; that he knew his general reputation for truth and veracity among his neighbors and in the community, where he is known; that his reputation was bad, and that from such knowledge of his reputation for truth and

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veracity lie would not believe him, the　said Francis Meadows, on oath, where interested." On his cross-examination this witness stated, that "he had heard two of his neighbors

speak of having heard the said Francis wear a lie;

that he himself had never heard him swear a lie; that among others, whom he had heard speak of witness Francis swearing a lie; was one Robert Toney, a justice; that he had also heard Robert Hunter say, he, Hunter, had heard said Francis tell a wilful lie; that he thought he had heard others speak of his character for truthfulness, but did not know, that he could now recall their names; that he, witness, however had not heard a majority of the said Francis's neighbors speak of said Francis's character for truthfulness." The court excluded this testimony from the jury; and the prisoner by counsel excepted.

The only ground for excluding this evidence, which has been suggested, is that the witness stated, that he had not heard a majority of the neighbors of the prosecuting witness speak of his character for truthfulness. If this was a test of the competency of a witness introduced to impeach the general reputation of another witness, it would be a practical bar against impeaching the veracity of witnesses, as it would require a poll of a man's neighbors within a given territory of uncertain extent and limits. The more notorious a man's bad character for truth and veracity, the less likely a witness called to impeach it is to be able to recall the names and number of those, from whom his knowledge of his general reputation is derived. When one or two persons mention a fact of a startling character, it so fixes the attention and arouses the mind, as to lodge in the memory the time, place, circumstances and the persons who communicated it, as to make them all subjects of easy recall to the mind. But as the number increases, and the occasions are repeated, the mind ceases to retain the details of the fact, which has become a subject of common report, public opinion and general reputation in a neighborhood, until to trace it to individual sources becomes a matter of practical impossibility.

General reputation is mere public opinion (Parsons, C. J., in Boynton v. Kellogg, 3 Mass R. 192) and is a term convertible with common report, per Gibson, J., in Iimmel中 v. Kimmel, 3 Serg & R. 337. Public opinion and common report and general reputation may be of such long standing, that when it began, how rapidly it spread and how universal it has become, is ordinarily not susceptible of solution. On the other hand the witness's knowledge of the general character of the person attacked may be of recent origin and based upon slight evidence and derived from few and unworthy sources. It is therefore a fair subject of investigation in weighing the value of the testimony, to ascertain the sources, from which that knowledge is derived; and the opinion of the witness will be more or less valuable as the circumstances show his opportunities for forming the opinion were well founded or not. It has been held in Lemons v. The State, 4 W. Va. 755, that the best evidence, tiiat a person's general reputation for truth and veracity in his neighborhood is good, is the fact, that his character in that regard has never been called in question or talked about; and the evidence of a witness to that character is admissible, though the witness has never heard any person or persons say anything whatever concerning it, I think a man's general reputation for truth and veracity may be so had and notorious, that a witness may be permitted to testify to it without being aide to state the sources, from which that knowledge of the general reputation is derived. If he cannot do so, it is a matter for the jury to take into consideration in weighing his testimony and in determining its value as in any other case.

Reputation is not made up or established by any particular acts; and hence the law confines the evidence to the question of general reputation and will not permit evidence of specific acts, for it is not a question as to the grounds, upon which that general reputation is founded, or whether well or...