State v. Mullins

• Decision Date: 28 November 1950
• Docket Number: No. 10256,10256
• Citation: 135 W.Va. 60,62 S.E.2d 562
• Parties: STATE, v. MULLINS.
• Court: West Virginia Supreme Court

Page 562

62 S.E.2d 562

135 W.Va. 60

STATE, v. MULLINS.

No. 10256.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 26, 1950.

Decided Nov. 28, 1950.

Syllabus by the Court.

Appearing in a public place in an intoxicated condition constitutes a misdemeanor, for which, if committed in his presence, a duly appointed and qualified police officer of a municipality of this State, acting as such, may arrest an offender without a warrant.

G. C. Belknap, Sutton, Henry McLane, Clay, for plaintiff in error.

William C. Marland, Atty. Gen., Thomas J. Gillooly, Asst. Atty. Gen., for defendant in error.

FOX, Judge.

On the 3rd day of June, 1947, a grand jury attending the Circuit Court of Clay County, returned an indictment against J. J. Mullins charging him with the murder of one Noah Chapman, Jr. At the June term, 1949, the case was called for trial, and a demurrer to the indictment was overruled, to which the defendant excepted at the time. The defendant then entered his plea of not guilty and a trial was had, resulting in the failure of the jury to agree upon a verdict, and the case was then continued until the next succeeding term of said court. The case was again tried at the October term of said court, resulting in a verdict that the defendant was guilty of voluntary manslaughter. A motion to set aside said verdict was overruled by the court, and judgment entered thereon, by which the defendant was sentenced to a term in the penitentiary of this State generally, which, under the statute, is a term of from one to five years. On February 6, 1950, we granted this writ of error to the judgment aforesaid.

The errors assigned may be limited to two in number. First, that the verdict of the jury was contrary to, and not supported by the law and the evidence, and that the trial court erred in overruling defendant's motion to set aside the verdict of the jury, and award him a new trial on that ground; and second, the giving of certain instructions, the effect of which was to tell the jury that the defendant, a police officer of the Town of Clay, was not authorized to attempt the arrest of the deceased, Noah Chapman, Jr., from which the homicide charged resulted, unless he was in a state of gross intoxication in a public place, the contention of the defendant being that he had a right to make such arrest if the said Chapman was at that time and place in an intoxicated condition. To bring out these points it will be necessary to state, in part, the events leading up to the homicide for which the defendant, J. J. Mullins, stands charged in the indictment.

On the 3rd day of March, 1947, Noah Chapman, Jr. and his friend Robert Knotts, who apparently lived together on Mt. Pisgah near the Town of Clay, together came to the Town of Clay shortly after 11:00 o'clock in the morning. Knotts appears to have been driving a truck or other vehicle because he states that he drove Chapman to the steps leading up to the court house in Clay, and then went on to Dundon to get a load of coal. After getting the coal, he transported the same to his home, then came back to Clay about 2:00 o'clock in the afternoon, where he found Chapman at the lower end of the town, and they appear to have spent the evening at a poolroom or beer parlor. The evidence does not disclose the activities of Chapman from the time he separated from Knotts near the court house, until he and Knotts came together sometime after 2:00 o'clock in the afternoon. It is quite apparent that during this period of time Chapman purchased two fifths of whiskey, for, after his death, when his body was searched it was found that he had on his person two bottles of whiskey called fifths, one of which had not been opened, and the other of which was about tow-thirds consumed. The testimony of Knotts is that during the afternoon when he and Chapman were together they each took one drink of whiskey, and each drank three bottles of beer, all of which leads to the inference that Chapman may have consumed the two-thirds of the fifth of liquor in one of the bottles purchased by him, other than the two drinks he and Knotts had together, and this in turn bears upon the probable state of intoxication, if any, of Chapman at the time of his attempted arrest by the defendant, which led to the unfortunate event which followed.

The evidence tends to show that Chapman and Knotts were together all of the afternoon, unless there was a possible few minutes trip on the part of Knotts to some point in Clay, which does not seem to be important; but in the evening, the exact hour being somewhat uncertain, but certainly not earlier than 5:00 o'clock, Chapman and Knotts seemed to have decided to go home. They first went to a drug store, made some purchases, then crossed the street to the opposite side, and up the street to a food market, a short distance above the Henry Clay Hotel, in the Town of Clay. About this time, the defendant, who will be referred to as Mullins, and who was regularly appointed and then acting as chief of police of the Town of Clay, drove his automobile to the vicinity of the Henry Clay Hotel, and while sitting there in his automobile, Chapman and Knotts walked up the street, went into the food market, and were in there from three to five minutes. After coming out of the food market they started down the street and were in the act of passing the Mullins' automobile. Mullins made some inquiry as to where they were going, and the evidence varies somewhat as to what was said by each of the parties, but at any rate Mullins attempted to place Chapman under arrest for drunkenness, and attempted to force him into his automobile with the idea that he would be taken to the town jail. Then began the struggle in which Mullins appears to have been the aggressor, for he struck Chapman with his mace several times. Mullins called upon several people to aid him, but, aside from one Smith, no one came to his aid. The street was icy, with some snow, Knotts then became involved in the struggle, and finally he and Smith took a mace away from Mullins, he having fallen on the ground on his back, with Chapman hovering over him, probably not entirely on his body, but at this time in some manner Chapman was shot and killed. Two shots were fired, one of which caused a superficial wound, the other was fatal.

We will not go into detail as to just how the homicide occurred. There is the usual contradiction on the part of the witnesses who stood by and saw and heard what occurred, but who vary in their testimony, no two seeing the same thing. We have stated sufficient facts to warrant us in discussing one of the principle questions in the case which, if determined in favor of the defendant's contention, will call for a reversal of the judgment aforesaid, the setting aside of the verdict and granting a new trial, and this question revolves around the instructions given by the court, at the instance of the State, and the modification of certain instructions offered by the defendant, and, as modified, given by the court.

The crucial question arising from the giving of the instructions aforesaid is that of the right of the defendant Mullins to attempt the arrest of Chapman. It is conceded that Mullins, as a police officer, had the right to arrest Chapman if he was in a state of gross intoxication in a public place. It is contended by the defendant that he had the right to make such arrest if Chapman was in an intoxicated condition in a public place. The importance of this dispute is obvious. If, as the State claims Mullins did not have the legal right to arrest Chapman unless he was in a state of gross intoxication, and the proof does not disclose that Chapman was in such a state of gross intoxication, then Chapman had the right to resist arrest. If Mullins was the aggressor, then, under the circumstances of this case, he could not rely upon self-defense as justification for his actions resulting in the death of Chapman.

With this explanation we proceed to state what the court did in the matter of instructions. At the instance of the State, the court gave the following instruction, which was a modification of an instruction offered by the State: 'The court instructs the jury that the defendant in this case, J. J. Mullins, at the time he shot and killed the deceased, Noah Chapman, Jr., if the jury believes beyond a reasonable doubt that he so shot and killed him, was a duly qualified and acting police officer of the municipality of Clay, Clay County, West Virginia, and was undertaking to arrest the said Chapman without a warrant upon the assumption that the said Chapman was drunk in his present; that, as such police officer, the defendant had no legal right or authority to arrest the deceased without a warrant unless the deceased was in a state of gross intoxication in a public place in the presence of J. J. Mullins, or the said Mullins believed him to be so. If, therefore, you believe from the evidence in this case that, at the time the said J. J. Mullins undertook to arrest the deceased, the deceased was not in a state of gross intoxication in a public place, and that the said J. J. Mullins had no warrant for his arrest, then such attempted arrest was illegal and the deceased had the legal right to resist.'

The State offered another instruction, which was modified by the court, and given in the language following: 'The court instructs the jury that the defendant in this case, J. J. Mullins, at the time he shot and killed the...