State v. Miller
| Decision Date | 02 February 1915 |
| Docket Number | 2747. |
| Citation | 84 S.E. 383,75 W.Va. 591 |
| Parties | STATE v. MILLER. |
| Court | West Virginia Supreme Court |
Submitted January 27, 1915.
Syllabus by the Court.
Refusal to give instructions correctly stating the law of self- defense, in a trial on an indictment for murder when there is evidence appreciably and directly tending to prove legal excuse for the killing, is reversible error.
It is error to admit evidence, in such a case, tending to prove bad character or degradation on the part of the accused, over his objection and in the absence of evidence adduced by him to establish good character on his part.
It is likewise error to require the prisoner, testifying on his own behalf, in a criminal case, over objection made by his attorney, to admit, on cross-examination, acts of degradation, not relevant nor material to the issue.
Error to Circuit Court, Cabell County.
E. E Miller was convicted of voluntary manslaughter, and brings error. Reversed and remanded for new trial.
Daugherty & Riggs and Marcum & Shepherd, all of Huntington, for plaintiff in error.
A. A Lilly, Atty. Gen., John B. Morrison and J. E. Brown, Asst. Attys. Gen., and Henry Simms, of Huntington, for the State.
On an indictment for murder, the plaintiff in error was convicted of voluntary manslaughter, in the criminal court of Cabell county, and sentenced to imprisonment for a period of five years, and the circuit court refused to allow him a writ of error. Then he obtained one from this court.
Assuming lack of evidence tending to prove self-defense, the trial court refused instructions which would have advised the jury as to the right of such defense and the elements thereof; and, for the state, it is insisted here that he had waived it, by his assignment, as a reason for the shooting, of his sudden discovery of Johnson, the slain man, in company with his wife on a bed in Johnson's room in a hotel in which the wife was employed. If there was evidence tending to maintain the issue of self-defense, this admission did not preclude consideration thereof by the jury, nor justify the action of the court in its refusal of the instructions, correctly declaring the law of self-defense. State v. Michael, 82 S.E. 611. In that case, the prisoner said he had shot in self-defense, and the court omitted to recognize, in its instructions, the right of the jury to find him guilty of manslaughter, a lower degree of crime, and, for that, a new trial was allowed. Here the court denied the defense of excusable homicide, because the prisoner assigned a reason for the shooting, inconsistent with that theory. Hence the principle of the Michael Case is clearly applicable.
The eyewitnesses to the shooting were the accused and his wife. The former said:
Asked on cross-examination, why he shot Johnson, he said "Because I caught him there with my wife;" but later he said: "Well, I thought he was aiming to hit me with that brick." Still later, this question was asked, "You thought you had to do something--was that the reason you shot?" and he answered: ...
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