State v. Milam

Decision Date09 October 1956
Docket NumberNo. 10787,10787
Citation142 W.Va. 98,94 S.E.2d 442
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Henry Thomas MILAM.

Syllabus by the Court.

1. 'The Circuit Court has a wide discretion in holding night sessions, so far limited, however, as that it shall not impair the party's right to a fair trial according to law.' Pt. 4, syllabus, State v. Belknap, 39 W.Va. 427 .

2. 'In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the accused beyond a reasonable doubt, though the evidence adduced by the accused is in conflict therewith. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.' Pt. 1, syllabus, State v. Bowles, 117 W.Va. 217 .

Kingdon & Kingdon, Frederick T. Kingdon, Mullens, for plaintiff in error.

John G. Fox, Atty. Gen., George G. Burnette, Jr., Asst. Atty. Gen., for defendant in error.

LOVINS, Judge.

Henry Thomas Milam, hereinafter referred to as defendant, was indicted for the murder of his wife, Marie Milam. He entered a plea of not guilty, and upon trial, was found guilty by a jury of the crime of voluntary manslaughter. After overruling a motion to set aside the verdict, the court sentenced him to serve an indeterminate sentence in the penitentiary from one to five years. The trial court, in view of defendant's showing of good reputation, recommended that the defendant be confined for the minimum time in the Huttonsville Medium Security Prison. This Court granted a writ of error to review that judgment.

The defendant married the deceased about seven years before the tragedy. The deceased had a daughter, Drema, at the time of her marriage to the defendant. The defendant and the deceased lived at Allen Junction, Wyoming County, West Virginia, and operated a restaurant next door to their home. Margaret Minnick, the sister of the deceased, lived with them. It seems that the deceased and her sister operated the business while the defendant was working in a mine where he was employed. When the defendant came home from work, he attended to the business establishment until it closed.

On or about May 6th, the deceased, her child and sister, left their home and stayed away until May 10th. During their absence, a man named Whitt joined them. The evidence tends to show that the two women, the child, Whitt and an unnamed man stayed in a cabin at Shawnee Lake in Mercer County.

Whitt, who seems to have been keeping company with the sister of the deceased, came to the home of the defendant and the deceased prior to the tragedy, where he obtained a pistol which he had theretofore given to Margaret Minnick, and was told by the defendant to give it to the sister of the deceased when she asked for it. Whitt also obtained some clothing belonging to Margaret Minnick.

Sometime during the day of May 10th, the deceased, her child, her siter and Whitt went to a justice of the peace to obtain a peace warrant for the defendant and process to take the women's clothing, but the justice of the peace declined to issue the warrant and process on the grounds that the reasons shown therefor were not sufficient. The justice did, however, telephone to the defendant and ask if the deceased and her sister could obtain their clothing, and was given assurance that they could.

The reason for the separation of the defendant and deceased is not clearly shown in the record. There is evidence tending to show that the defendant and the deceased had, during their married life, quarreled, but nothing serious had resulted from such quarrels.

Upon their return to the residence of the defendant, he was in the restaurant, but upon request, he unlocked the door of the dwelling. The deceased, her child and sister, went into the house, but Whitt, who had driven them in his automobile, stayed outside.

For some reason not clearly shown, an affray started. During the affray, the deceased ran from the house screaming. The testimony as to who fired the first shot is in conflict. The child testified that the deceased, her mother, started running and screaming when the defendant shot Whitt; that the defendant was standing in the door of the house and shot her mother when she was just outside the gate; she then heard two shots at the same time, Margaret Minnick and the defendant shooting at each other. Whitt testified in substance, that the screaming started about three minutes after they entered the house; that the deceased ran through the gate of the fence that enclosed the house and was running along the fence at the time she was shot. Whitt also testified that the defendant was standing at the gate with the shotgun.

The defendant testified that he was fired upon first, obviously by Margaret Minnick who evidently had the pistol in her possession when she entered the dwelling. The defendant however stated he had given this pistol to Whitt and he did not know from what point the shot came; in confusion, picked up his shot gun from near the front door and fired twice out the front door toward Whitt and at his wife; that the second shot, fired by Margaret Minnick, missed him and hit Marie Milam, apparently about the time he fired the second shot toward Whitt, thus hitting Marie Milam who was in his line of fire; that he then turned toward the back room and shot the sister.

The defendant's gunshot wound was evidently inflicted by the pistol which was afterwards found in the room where Margaret Minnick, the sister, was found dead.

As the deceased ran from the house, she was hit by a pistol bullet which, according to testimony of the state's witness, hit her in such way as to turn her right side toward the defendant who fired three shots from an automatic shot gun. The first shot hit Whitt in the face. The second shot entered the body of the deceased and the third shot evidently killed Margaret Minnick; so that the result of the shooting affray was that the defendant and Whitt were seriously wounded and the deceased and her sister killed.

The defendant defends on the grounds that he was so confused when the firing commenced that he thought he was in great danger of bodily harm at the hands of Whitt. It is pertinent to say that the deceased was running along the fence when she was struck by the shot gun load.

There is some conflict in the testimony whether the defendant shot from the doorway of his dwelling or from the yard near the gate. The testimony of the child, Drema, substantiates that of Milam with respect to where he was when the shooting occurred and conflicts with that of Whitt; and conflicts with that of Milam as to which of the shots fired by Margaret hit him. He says that Margaret shot him first and missed him with the second shot, hitting his wife. The testimony of the child indicates that her mother must have been struck by the first shot fired by Margaret and that Milam and Margaret shot each other with the last shots. The body of the sister was found in the bedroom and the pistol from which two bullets...

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3 cases
  • State v. Stevenson
    • United States
    • West Virginia Supreme Court
    • October 22, 1962
    ...injustice has been done.' That syllabus point has been quoted with approval by this Court in the recent cases of State v. Milam, 142 W.Va. 98, 94 S.E.2d 442, and State v. Spradley, 140 W.Va. 314, 84 S.E.2d 156. In the opinion in the Spradley case there are twelve decisions of this Court cit......
  • State v. Vance
    • United States
    • West Virginia Supreme Court
    • March 6, 1962
    ...be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.' Point 2, syllabus, State v. Milam, 142 W.Va. 98, 94 S.E.2d 442; point 1, syllabus, State v. Spradley, 140 W.Va. 314, 84 S.E.2d 156; point 3, syllabus, State v. Lewis, 133 W.Va. 584, 57 S.E......
  • State v. McClanahan, 22224
    • United States
    • West Virginia Supreme Court
    • December 15, 1994
    ...and circumstances of the case. This rule has consistently been accepted in many later West Virginia cases. See, State v. Milam, 142 W.Va. 98, 94 S.E.2d 442 (1956); State v. Zannino, 129 W.Va. 775, 41 S.E.2d 641 (1947); State v. Ponce, 124 W.Va. 126, 19 S.E.2d 221 (1942); State v. McCalliste......

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