State v. Morris
| Citation | 142 W.Va. 303,95 S.E.2d 401 |
| Decision Date | 04 December 1956 |
| Docket Number | No. 10804,10804 |
| Parties | STATE of West Virginia v. Floyd I. MORRIS. |
| Court | Supreme Court of West Virginia |
Syllabus by the Court.
1. Alleged errors in the admission or the rejection of evidence, to which objection has been made in the trial court, and which evidence is not specifically set forth as a ground of a motion to set aside the verdict and grant a new trial, is not incorporated in a special bill of exceptions or the assignments of error in the petition for a writ of error, is not set forth in the brief of the attorney for the complaining party, or is not otherwise specifically brought to the attention of the appellate court, are waived and will not be considered or reviewed by such court upon writ of error.
2. Malice express or implied is an essential element of murder of the first or second degree.
3. When an affray is provoked by the deceased, the use of a deadly weapon by the defendant in killing the deceased will not give rise to a presumption of malice.
4. 'A sudden intentional killing with a deadly weapon, by one who is not in any way at fault, in immediate resentment of a gross provocation, is prima facie a killing in heat of blood, and, therefore, an offense of no higher degree than voluntary manslaughter.' Point 10, syllabus, State v. Clifford, 59 W.Va. 1 .
5. 'Where in a trial upon an indictment for murder there is no evidence showing malice, it is error to instruct the jury that it may find defendant guilty of murder either in the first or second degree.' Point 3, syllabus, State v. Hurst, 93 W.Va. 222 .
6. An instruction which is not sustained by evidence should be refused.
7. It is error to give instructions to the jury, even though they state correct propositions of law, when there is no evidence to support some of the hypotheses which they contain.
8. When the verdict of a jury is wholly without evidence on a point essential to a finding, or the evidence is plainly insufficient to warrant such finding by the jury, such verdict should be set aside and a new trial should be awarded.
A. G. Mathews, Stanley D'Orazio, Grantsville, for plaintiff in error.
John G. Fox, Atty. Gen., Giles D. H. Snyder, Asst. Atty. Gen., for defendant in error.
At the November Term, 1954, of the Circuit Court of Calhoun County, the defendant, Floyd I. Morris, was indicted for the murder of Charles D. Weekley in October, 1954, in that county. The first trial upon the indictment, which was held during the April Term, 1955, of the circuit court of that county, ended in a mistrial which resulted from the failure of the jury to agree upon a verdict. At the second trial, during the August Term, 1955, of that court, the jury found the defendant guilty of murder of the first degree as charged in the indictment with the recommendation that the defendant be punished by confinement in the penitentiary of this State. The circuit court overruled the motion of the defendant to set aside the verdict of the jury and award the defendant a new trial and by final judgment entered August 18, 1955, setenced the defendant to confinement in the penitentiary of this State during the term of his natural life. To that judgment this Court granted this writ of error on March 5, 1956, upon the petition of the defendant.
The affray which resulted in the homicide for which the defendant was indicted occurred shortly before midnight of Saturday, October 2, 1954, at a roadside tavern known as Do Drop Inn operated by a man named John Vincent, located on West Virginia Route No. 16, near the village of Stinson, which is approximately ten miles south of Arnoldsburg, in Calhoun County, in this State. The defendant was about sixty three years of age and had been a resident of Calhoun County for many years. On October 1, 1954, he was discharged from Pinecrest Sanitarium at Beckley, West Virginia, where he had been a tuberculosis patient for a period of thirteen and a half months immediately preceding his discharge from that institution. He spent that night at the home of one of his nieces which is near Ivydale, Clay County, West Virginia, about ten miles south of Stinson, and remained there until about seven o'clock in the evening of Saturday, October 2, 1954, when, in company with his brother and his son-in-law, he went to the Do Drop Inn. There he met a man named Goldie Murphy and together they went in Murphy's automobile to the home of Ella Morris, a sister-in-law of the defendant, where they planned later to attend a dance at the inn. They then went to a beer parlor known as Ricky's Place near Arnoldsburg where they met Otha Drake and Madge Murphy. After staying a short time at Ricky's Place the defendant, Goldie Murphy, Ella Morris, Otha Drake and Madge Murphy went in the automobile driven by Goldie Murphy to the home of Woodrow Murphy near Orma where they were joined by Cora Murphy and from that place they proceeded to the Do Drop Inn where the defendant arrived about nine o'clock that evening. During his travels before he returned to the Do Drop Inn the defendant had three drinks of whisky and during his stay there, after his second arrival, he drank 'two or three beers.'
Charles D. Weekley, who at the time of the homicide was a young married man twenty six years of age, six feet in height and whose weight was about one hundred ninety pounds, accompanied by Doris Postlewaite and another couple, went in his father's truck from Ivydale to the Do Drop Inn where he arrived about ten thirty o'clock that evening.
While the defendant and Weekley were at the Do Drop Inn a dance was in progress and the crowd in attendance consisted of approximately one hundred twenty five people.
The building in which the activities of the inn were conducted is a one story frame structure which fronts on West Virginia Route No. 16. It consists of two large rooms separated by a partition which contains a doorway between the two rooms. The large room to the left of the front entrance to the inn was used as a dance hall and the room which extends to the right of the main entrance was used as a beer parlor. This room contains a bar, which is located immediately to the right of the main entrance and extends parallel with the front side of the building, and two rows of booths. Each booth contains a table and two double seats. One of the rows of booths is located along and parallel with the rear side of the room and the other row of booths, which is parallel with the bar, is located between the bar and the row of booths along the rear side of the room. There are aisles between the two rows of booths and the bar and these aisles extend the entire length of the room.
The evidence shows that while they were at the inn both the defendant and Weekley were to some degree intoxicated; that they had been acquainted with each other for several years; and that they had not had any prior quarrels or disagreements. The evidence does not disclose that either made or uttered any threat against the other, or that Weekley was armed with any dangerous or deadly weapon.
Shortly before midnight and after the defendant had spent some time talking with different persons in the crowd at the inn, he was standing near the front entrance to the inn a few feet from the bar and the door in the partition between the dance hall and the beer parlor. His twenty year old grand nephew, Raymond Cadle, with whom the defendant had been talking, was standing near the defendant who held in his hand a partially filled beer bottle some of the contents of which he had been drinking. At that time Weekley approached the defendant and, according to the testimony of Cadle, twice pulled the defendant's hat down over his face and grabbed him on both sides of his head. The defendant testified that Weekley suddenly approached the defendant, pulled his hat down over his face four or five times and hit his ear. Weekley then turned away from the defendant and as he did so the defendant struck him near his left ear with the beer bottle. The force of the blow broke the bottle. Cadle testified that Weekley 'kind of sunk down a little', because of the blow and that the defendant 'went at him with his fist and they grabbed each other.' In the scuffle which ensued both fell to the floor with Weekley on top of the defendant. Madge Murphy and Cora Murphy pulled Weekley off the defendant, who arose from the floor, and he and the Murphy women went to the second booth from the dance hall in the row located along the rear side of the room.
After the fight near the bar had ended the proprietor of the inn talked to Weekley and asked him to leave the inn. Weekley told him that he wanted to see the defendant and find out why he had hit him with the beer bottle. Weekley then agreed to leave and with his female companion started toward the door. He did not leave, however, but went to a booth occupied by a man and his wife which was next to the booth in which the defendant and his companions were then sitting. The man in the booth with his wife testified that Weekley asked him two or three times if he knew why the defendant had hit him, that he replied that he did not know, and that he and his wife left the booth and went near the bar because Weekley and the defendant had had one fight and he wanted to get his wife 'out of the way' and 'took her over close to the bar.'
The proprietor testified that when the defendant got up from the floor he took a knife from his pocket; that he asked the defendant to give him the knife or to put it in his pocket; and that the defendant said that he would put it in his pocket. He also testified that when he asked Weekley to leave the inn he told Weekley that the defendant had a knife and that Weekley could see the defendant later and find out why he had hit him. No witness except the proprietor and Carl Mollohan, whose evidence on that point is not clear, testified that he saw a knife in...
To continue reading
Request your trial
-
State v. Hatfield
...heat of passion by killing the assailant. This ordinarily limits the degree of culpability to voluntary manslaughter. State v. Morris, 142 W.Va. 303, 95 S.E.2d 401 (1956)."4 The term "Clifford Instruction" is used because State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906), is the first case ......
-
State v. Kirtley
...which is essential to a verdict of first or second degree murder. State v. Starkey, W.Va., 244 S.E.2d 219 (1978); State v. Morris, 142 W.Va. 303, 95 S.E.2d 401 (1956); State v. Cassim, 112 W.Va. 92, 163 S.E. 769 (1932); State v. Galford, 87 W.Va. 358, 105 S.E. 237 Traditionally, we have hel......
-
State v. Bongalis, 17971
...the plain indication of a heart regardless of social duty and fatally bent on mischief." We were careful in State v. Morris, 142 W.Va. 303, 314-15, 95 S.E.2d 401, 408 (1956), to point "This term, it has been said, implies a mind under the sway of reason. It excludes the idea of sudden passi......
-
Hollen v. Linger
...v. Long, 146 W.Va. 636, 122 S.E.2d 186; State ex rel. Shatzer v. Freeport Coal Company, 144 W.Va. 178, 107 S.E.2d 503; State v. Morris, 142 W.Va. 303, 95 S.E.2d 401; State v. Cirullo, 142 W.Va. 56, 93 S.E.2d 526; Mulroy v. Co-Operative Transit Company, 142 W.Va. 165, 95 S.E.2d 63; Rees Elec......