State v. Morrison

• Decision Date: 16 March 1901
• Citation: 38 S.E. 481,49 W.Va. 210
• Parties: STATE v. MORRISON.
• Court: West Virginia Supreme Court

38 S.E. 481

49 W.Va. 210

STATE v. MORRISON.

Supreme Court of Appeals of West Virginia.

March 16, 1901

Syllabus by the Court.

1. A judgment will not be reversed, in a case in which a verdict of murder in the second degree is clearly justified by the evi dence, because an instruction was given in the case embodying the law as expounded in point 11 of the syllabus in Cain's Case, 20 W.Va. 679.

2. The intent to do enormous or severe bodily harm with a deadly weapon, followed by homicide as the result of the execution of such intent, constitutes murder in the second degree unless the act be done under such circumstances as render the killing excusable, or justifiable, or voluntary manslaughter.

3. A specific intention to kill is not essential to murder in the second degree, but it is essential to murder in the first degree.

4. It is not error to refuse to give an instruction that gives undue prominence to isolated portions of the evidence, and therefore calculated to mislead the jury.

5. Upon the trial of a person charged with the crime of murder evidence of his good character may always be received as tending to disprove his guilt; but evidence of the ferocious brutal, vindictive, or other dangerous character of the deceased is only admissible as part of the proof of self-defense, as tending to show the bona fides of the defendant's belief in the necessity of killing his assailant to save himself from death or great bodily harm. It is not error to refuse an instruction directing the latter class of evidence of character to be considered in determining generally the guilt or innocence of the accused.

Error to circuit court, Logan county; E. S. Eoolittle, Judge.

Wirt Morrison was convicted of murder in the second degree, and brings error. Affirmed.

John B. Wilkinson and Marcum, Marcum & Shepherd, for plaintiff in error.

Edgar P. Rucker, Atty. Gen., and Luther C. Anderson, for the State.

POFFENBARGER J.

An indictment having been found and presented in the circuit court of Logan county at the July term, 1900, against Wirt Morrison, charging him with the murder of William Ruble, in said county, on the 28th of April, 1900, he was put upon his trial in said court at the same term, and the jury returned a verdict of guilty of murder in the second degree. Motions to set aside the verdict and in arrest of judgment were made and overruled, and the court fixed his term of imprisonment at six years, and pronounced judgment and sentence accordingly, but stayed the execution of the judgment and sentence, on the motion of the prisoner, for 60 days, to enable him to apply for a writ of error; which application was made, and the writ granted.

Prior to the morning on which Ruble received the blow from which he died next day, he, Morrison, and one Dave Dempsey had, for a month or more, been working together in getting out timber on Big, Spring Branch, in said county, for some persons named McDonald, during which time they occupied a small shanty. Having completed their work, they intended to abandon the camp that morning, and go down to the stores of the McDonalds, who had separate stores not far distant from each other, to settle up, after which they were to seek other employment. They had procured some liquor, and had been drinking some, and while at breakfast an argument arose between Morrison and Ruble, which resulted in Morrison's striking the fatal blow with a heavy stick which they had used in attending their fire. There were some blacksmithing tools in the shanty, and it is claimed that when Morrison struck him Ruble was reaching for a horseshoeing rasp lying on the mantel. On this point Dempsey testifies as follows: "Well, at the breakfast table they got into an argument about Mr. Sternberger that used to sell liquor at Huntington, and Mr. Ruble he asked Mr. Morrison if he knew him, and Mr. Morrison said, 'Yes.' Then Mr. Ruble said that he waited on him when he was sick, and he waited on him when he died, and that he never had two clerks in his saloon. Mr. Morrison said he knew he had two or three clerks, because some young men from his neighborhood or county had gone down there to clerk in his saloon; and Mr. Ruble disputed it. About that time, as well as I remember, they got up from the table, Mr. Morrison and Ruble; and I turned to the table, and commenced to bunch up the dishes. Mr. Ruble started around to the corner of the shanty to where the water bucket was, and Mr. Morrison went out like he was going out the door. I do not think Ruble got any water, but turned on to the door, too, and that put them both behind me; and something more was said about Sternberger. I do not remember just how it was. Mr. Ruble said, 'God d___ you, you are just like Jim Mac; you want everything your way;' and about that time I heard a lick, and I turned around, and Mr. Ruble was lying down with his head sorter under the stove. His head would have been under the stove if it had been up off the floor high enough, but any way his head was against it. I turned, and grabbed him, and said, 'Wirt, damn it, if I had wanted to whip him, I would have taken my fist,' and he said, 'Dave, I would not have done it, but he was reaching for that rasp."' Morrison testified in the case, and gives the following account of his striking Ruble: "I went towards the door as if I were going out, and I think Ruble went towards the water bucket, but did not get him a drink, and about that time he started towards me, and when he got to this fire board, where there was a rasp lying on the edge of the mantel piece or board, he said, 'God damn you, you are just like Jim Mac; you want everything your own way.' He was gritting his teeth, and I turned around with my face towards him. There was a rasp lying on the end of the fire board, and, as I turned facing him, Ruble turned his face this way (illustrating), and reached for the rasp. Just about the time his hand struck the rasp, I grabbed this stick (referring to the stick offered in evidence by the state's attorney), and hit him. *** I knocked him down. Dave was there at the table, and he turned around and said, 'Wirt, damn it, if I had wanted to whip him, I would have taken my fist.' I said, 'Dave, I would not have hit him if he had not aimed to hit me with that rasp."' Soon afterwards Morrison and Dempsey gathered up their cattle and tools, and went down to the stores to settle up, leaving Ruble in a helpless condition at the shanty, where he was found shortly afterwards by persons to whom they had given information about the trouble, and taken to a house near by, where he died the next morning. Morrison told several persons that day substantially what he and Dempsey have testified to. They give some reasons for thinking Ruble was not so badly injured as he was in explanation of their leaving him there alone.

There were seven instructions given at the instance of the state, to the giving of which the prisoner excepted, and made them the subject of his bill of exceptions No. 1. The prisoner requested the court to give seven instructions, of which No. 1 was given, Nos. 3, 5, and 7 refused, and Nos. 2, 4, and 6 modified, and then given; and the action of the court in refusing Nos. 2, 3, 4, 5, 6, and 7 as requested, and in giving Nos. 2, 4, and 6 as modified, is excepted to, and made the subject of bill of exceptions No. 2. Bill of exceptions No. 3 contains the evidence and exceptions to the overruling of motions to set aside the verdict and in arrest of judgment.

The first instruction for the state is proper, and no reason is assigned why it should have been refused. The second instruction for the state is in almost the exact words of the eleventh point of the syllabus in Cain's Case, 20 W.Va 679, the substance of which is that the killing is prima facie willful, deliberate, and premeditated, and therefore murder in the first degree, if the prisoner, with a deadly weapon in his possession, without any, or upon very slight, provocation gives another a mortal wound, and extenuating circumstances are not shown by the prisoner, or appear from the case made by the state. If the evidence in this case did not clearly support the verdict of murder in the second degree, and put it beyond question that this instruction did not injure the prisoner in the trial of his case, the important, and often intricate, question of the distinction between the two degrees of murder might arise in considering whether, upon the evidence in the case, it was proper to give it. But, viewing the case in the light of second-degree murder, it is wholly unimportant in determining that there is sufficient evidence to support the verdict whether the prisoner had the deadly weapon in his possession at the beginning of the quarrel, or took it into his hands and delivered the fatal blow in the same instant, and as a single act. Nor is it material whether, in delivering that blow, he intended to take the life of the deceased. The instrument with which the wound was inflicted is proved by the result to have been a deadly weapon. It was for the jury to say whether the act was done in the heat of blood, and therefore amounted in law to manslaughter only, or in self-defense, and justifiable. They have failed to find as matters of fact that the act was done as the result of passion and heat of blood, or in self-defense; but, on the contrary, that the blow was administered with a deadly weapon, and with the intent, at least, to do severe bodily harm, and from it death resulted; and there is evidence to support each of these findings. From these facts the jury might rightfully infer that the act was done maliciously. In truth the law implies the element of malice from these facts, and thus all the elements of murder in the second degree are established. ...