State v. Messinger, 14012
| Decision Date | 17 July 1979 |
| Docket Number | No. 14012,14012 |
| Citation | 256 S.E.2d 587,163 W.Va. 447 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Herman Sanford MESSINGER, Jr. |
Robert K. Means, Huntington, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., Ann V. Gordon, Asst. Atty. Gen., Charleston, for defendant in error.
Syllabus by the Court
1. "In a criminal prosecution, the State is required to prove beyond a reasonable doubt every material element of the crime with which the defendant is charged, and it is error for the court to instruct the jury in such a manner as to require it to accept a presumption as proof beyond a reasonable doubt of any material element of the crime with which the defendant is charged or as requiring the defendant either to introduce evidence to rebut the presumption or to carry the burden of proving the contrary." Syl. pt. 4, State v. Pendry, W.Va., 227 S.E.2d 210 (1976).
2. "As a general rule, West Virginia courts are not permitted to comment on the weight of the evidence; however, there is an exception entitling the defendant to an instruction that the uncorroborated testimony of a co-conspirator should be received with great caution when such testimony has a tendency to Inculpate the accused." Syl. pt. 3, State v. Spadafore, W.Va., 220 S.E.2d 655 (1975).
In this appeal from a conviction for first degree murder we are asked to examine four questions:
1. Whether the trial court erred in giving an instruction which informed the jury that homicide committed with a deadly and dangerous weapon was presumed to be second degree murder;
2. Whether the trial court properly instructed the jury on the manner in which the testimony of an accomplice to the crime should be considered;
3. Whether the trial court unduly limited the appellant's testimony regarding conversations which he had had with the accomplice, who was the State's chief witness; and
4. Whether the trial court erred by not having the opening and closing arguments in the case reported and transcribed.
The appellant, Herman Sanford Messinger, Jr. was indicted for the shooting death of Hubert Lee Messinger. On February 9, 1976, a trial of the case was conducted before a jury in Wayne County; at the conclusion of the trial the jury returned a verdict of guilty of first degree murder.
The principal witness for the State was an accomplice in the commission of the crime, one Michael Williamson, who, under a grant of immunity, testified in detail how the appellant had planned and perpetrated the murder with which he was charged. Among other points, Williamson testified that the appellant had on two occasions advanced money to him to hire a "hit man" to kill Hubert Lee Messinger.
The appellant took the stand and testified in his own behalf. He denied discussing the killing of Hubert Lee with Williamson. He also denied involvement in the crime. While on the stand, he, in an apparent effort to explain that he had loaned Williamson money rather than advanced it to him to hire a "hit man", attempted to testify regarding the "money" conversation with Williamson. The court ruled that the line of testimony was improper.
At the conclusion of the case the trial court gave, over the appellant's objection, instructions which, according to the appellant, relieved the State of the burden of proving every element of the crime against him and allowed the jury to treat Williamson's testimony with less circumspection than permitted by law.
The appellant's first assignment of error is that the trial court erred in giving, over his objection, State's Instruction No. 8 which said:
"The Court instructs the jury that where a homicide is proved by the use of a deadly and dangerous weapon, it is presumed by law to be murder in the second degree, and in order to elevate the offense to murder in the first degree the burden of proof is on the state, and in order to reduce the offense below murder in the second degree, the burden is on the defendant."
In State v. Pendry, W.Va., 227 S.E.2d 210 (1976), we held that in a criminal prosecution, the State is required to prove beyond a reasonable doubt every material element of the crime with which the defendant is charged; it is error for the court to instruct the jury in such a manner as to require it to accept a presumption as proof beyond a reasonable doubt of any material element of the crime with which the defendant is charged or as requiring the defendant either to rebut the presumption or to carry the burden of proving the contrary.
Malice is a material element of the crime of murder; in fact, it is the element which raises a homicide to murder. State ex rel. Combs v. Boles, 151 W.Va. 194, 151 S.E.2d 115 (1966); State v. Lewis, 133 W.Va. 584, 57 S.E.2d 513 (1949); State v. Roush, 95 W.Va. 132, 120 S.E. 304 (1923). In allowing the jury to presume murder from the use of a deadly weapon, State's Instruction No. 8 permitted the jury to presume malice, a material element of the crime. State's Instruction No. 8 also required the appellant to introduce evidence to rebut the presumption of malice and thus reduce the crime to something less than murder. Under our holding in Pendry, supra, the giving of State's Instruction No. 8 was plainly wrong. We have held that such an error is not harmless error. Angel v. Mohn, W.Va., 253 S.E.2d 63 (1979). We, therefore, hold that the giving of State's Instruction No. 8 over the appellant's objection was reversible error.
As stated previously the principal witness for the State during the trial of this case was Michael Williamson, the accomplice who allegedly participated in the commission of the crime charged.
At the conclusion of the evidence, the appellant offered two instructions on the caution with which the jury was to treat the testimony of the accomplice in the crime. Those instructions stated:
The trial court refused to give either of those instructions. In lieu of them the court gave a Court's Instruction which...
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State v. Vance
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