State v. Michael
| Decision Date | 30 June 1914 |
| Citation | 74 W.Va. 613,82 S.E. 611 |
| Court | West Virginia Supreme Court |
| Parties | STATE . v. MICHAEL. |
(Syllabus by the Court.)
Error to Circuit Court, Greenbrier County.
L. J. Michael was convicted of murder in the second degree, and brings error. Reversed and remanded.
S. C. Burdett, of Charleston, and Henry Gilmer, of Lewisburg, for plaintiff in error.
A. A. Lilly, Atty. Gen., John B. Morrison and J. E. Brown, Asst. Attys. Gen., for the State.
WILLIAMS, J. L. J. Michael was convicted of murder in the second degree and sentenced to confinement in the penitentiary for six years, and brings error. The principal errors assigned are the giving of instructions Nos. 1, 2, 4, and 5 on behalf of the state, and the refusal of the court to set aside the verdict and grant the defendant a new trial.
Defendant was convicted of murdering one John Miller on the night of January 15, 1913, at Eskdale, Kanawha county, by shooting him. He admitted the killing, and sought to justify it on the ground of self-defense. Eskdale is a mining town on Cabin creek in Kanawha county, within the territory embraced in the Governor's proclamation of martial-law which was declared on or about the 5th day of November, 1912. At the time the killing occurred the state national guards had been withdrawn from the territory, but it appears that the Governor's proclamation was still in force. One of the chief causes of complaint by the striking miners against the operators was the maintenance by the latter of what were known as "Baldwin-Felts Guards" or detectives, and after the withdrawal of the state troops certain members of the state national guards were employed by the operators in place of the Baldwin-Felts guards to keep watch over their property. Among those thus selected and employed was the defendant, who was a member of Company I of Fairmont, W. Va. He claimed to be acting under Maj. J. B. Payne, a deputy sheriff of Kanawha county, who had charge of the guards on Cabin creek. On the evening of the homicide Major Payne and defendant were on the Chesapeake & Ohio Railway train going up the branch line from Cabin Creek Junction. On the way up a colored man by the name of Dan Chain, otherwise known as "Few Clothes, " was on the train returning from the penitentiary. He was in the ladies' coach, intoxicated, and was using loud and boisterous language. Defendant asked him to leave the ladies' coach and go into the smoker, and he refused to do so, and defendant says he then took hold of him and removed him to the smoker. When the train arrived at a little station called Cane Fork, a half mile below Eskdale, there was some trouble with the engine, which delayed the train for about half an hour. Before the train pulled out Dan Chain got off and walked on in advance of it toward Eskdale. When the train arrived at Eskdale it was dark, but the electric lights were shining. A large crowd of people, variously estimated from 75 to 150 persons, had congregated at the little station. Defendant testifies that it was rumored that stones had been hurled through the windows of the coaches at this place; that on the night before a stone had been thrown into the coach and hit a man, whose name he did not know, and hurt him very badly. This fact is also testified to by Maj. Payne, and it is not denied. On account of these rumors and the Dan Chain incident which had just occurred, and supposing that he had reached Eskdale before the train arrived, defendant and Maj. Payne both say they were anticipating that the train might again be stoned, and when the train stopped they got off and walked along on the platform the length of a coach, between the train and the crowd that had congregated, thinking that their presence might prevent a recurrence of any violence. Defendant saysthat, as he stepped from the coach onto the platform, he heard some one remark, "There is the son-of-a-bitch with the yellow leggins on;" that he was the only one present who wore yellow leggins, and knew that the remark was intended to apply to him, though he says he did not know who made it. He further says that, as the train started to pull out from Eskdale Maj. Payne caught the railing at the rear end of the smoking car and got on the platform, and he caught the front end of the first day coach and got on the step, and as he did so he turned his head to watch two persons whom he says he observed standing a little apart from the crowd, and who looked to him suspicious. He says, quoting his testimony:
The stone with which defendant was hit was identified and exhibited to the jury. It was a piece of slag, used as ballast on the railroad, nearly square, very sharp on the edges and weighed about a pound and a quarter. That defendant was hit on the head and badly hurt, with the stone thrown by some one standing in, or near, the crowd, was clearly proven and not denied. The stone cut through a Derby hat and through the scalp to the skull. Dr. McMillion of Charleston, who dressed the wound that night, after the defendant was brought to Charleston, testifies that he "found an incised wound penetrating the scalp and the lining of the skull, extending into the plate of the skull." He says he made a very careful examination and cleansed the wound of infectious matter and dressed and closed it up. As to the character of the wound there is some conflict of testimony. Dr. L. M. Campbell, a witness for the state, testifies that he examined it about a half hour after it was inflicted, and regarded it as a slight wound. He says it was superficial and did not reach the skull. But it appears that his examination of it was likewise superficial. On cross-examination he stated that he regarded a serious wound one that endangered life, and admitted that a man might get a very hard blow and not receive a wound that he regarded as serious. He admitted that if Dr. McMillion stated that he had made a careful examination of the wound, and concluded that it did go to the skull, he would have no reason to doubt his diagnosis. If he had made a careful diagnosis himself he would not likely have made such admission.
Defendant was asked why he fired the shot, and answered as follows:
There is also conflict in the evidence as to whether deceased had his arm drawn, as if to throw a stone. Witness D. W. Williams, mayor of Eskdale, says, when deceased was shot he fell on his back and had his hands in his front pockets. This witness arrested defendant on the train immediately after the shooting, the train having been stopped, and he further says, quoting his language:
"He [defendant] seemed to be in a rather stupor, and seemed to be under the influence of whisky."
He found on the person of defendant a pint bottle half full of whisky. But Dr. Campbell, another state witness, says, when asked whether defendant was sober or intoxicated, that so far as he could judge he was "normal, " by which we suppose he meant he was sober; it not appearing that defendant was in the habit of becoming intoxicated. Defendant himself states that he had not taken a drink; that a friend of his, Wilson, asked him at Cabin Creek Junction on the way up to take a drink with him, and he declined, and thereupon he gave defendant the bottle and told him to take It with him.
We have thus briefly narrated the material facts and circumstances attending the commission of the homicide in order that it may be seen whether or not the instructions complained of are properly applicable thereto. The first instruction given for the state, and complained of, reads as follows:
"The court instructs the jury that a man is presumed to intend that which he does, or which is the immediate or necessary...
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