State v. Miller

• Citation: 84 S.E. 383,75 W.Va. 591
• Decision Date: 02 February 1915
• Docket Number: (No. 2747.)
• Court: Supreme Court of West Virginia
• Parties: STATE. v. MILLER.

84 S.E. 383
75 W.Va. 591

STATE.
v.
MILLER.

(No. 2747.)

Supreme Court of Appeals of West Virginia.

Feb. 2, 1915.

(Syllabus by the Court.)[84 S.E. 384]

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.

POFFENBARGER, J. 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:

"They were on the bed, and I seen him throw himself over on my wife, that way, and kind of raised, and I jerked the little boy out of the door, and he jumped off and grabbed a brick, and he didn't get straight with it, until I went to shooting. * * * He just sprang out-off of the bed and grabbed the brick. It lay right at the foot of the bed. I saw it there not 30 minutes before."

Asked, on cross-examination, why he shot Johnson...