State v. Opha Dephenbaugh

• Decision Date: 13 November 1928
• Docket Number: (No. 6234)
• Citation: 106 W.Va. 289
• Court: West Virginia Supreme Court
• Parties: State v. Opha Dephenbaugh

106 W.Va. 289

State

v.Opha Dephenbaugh

(No. 6234)

Supreme Court of Appeals of West Virginia.

Submitted October 30, 1928.

Decided November 13, 1928.

1. Jury That Veniremen Entertains Opinion as to Accused's

Guilt is Not Controlling in Determining His Qualification as Juror; Test of Juror's Qualification Notwithstanding Opinion is Whether he Can Render Verdict Solely on Evidence Without Bias or Prejudice.

The fact that a venireman by reason of something he has heard or read may have entertained an opinion as to the guilt or innocence of the accused is not controlling in determining the qualification of such venireman to sit as a juror in the trial. The true test is whether without bias or prejudice he can render a verdict solely on the evidence, under the court's instructions, disregarding any prior opinion which he may have entertained. (p. 293.)

2. Criminal Law Conviction Should Not be Set Aside for Error

in State's Instruction, Where Jury Could Not Properly Have Returned Verdict for Less Offense, or of Acquittal.

A verdict of guilt in a state case should not be set aside for error in an instruction given on behalf of the state where it clearly appears from the whole case that the jury could not properly have returned a verdict for a less offense, or of acquittal. (p. 295.)

Error to Circuit Court, Taylor County.

Opha Dephenbaugh was convicted of murder in the second degree, and he brings error.

Affirmed.

Sidney H. Sommerville and William P. Samples, for plaintiff in error.

Howard B. Lee, Attorney General, and B. A. Blessing, Assistant Attorney General, for the State.

Maxwell, Judge:

Opha Dephenbaugh, B. P. Howell, and Flora Chewning were jointly indicted in the circuit court of Taylor county at the January Term, 1927, for the murder of Sandy Combs, nicknamed Jack Johnson. Dephenbaugh, separately tried, was convicted of murder in the second degree and sentenced to confinement in the penitentiary for twelve years. He prosecutes this writ of error to the judgment of the trial court. The homicide and other occurrences herein recited took place at Wendel, a small mining town in Taylor county.

On the evening of December 24, 1926, Dephenbaugh (hereinafter referred to as the defendant) and Howell were somewhat under the influence of intoxicating liquor. They wanted more and sought it of Charles Caplinger at the home of his father. Charles told them that he could not get it for them but suggested that they might make inquiry of Jack Johnson. This was about eleven o'clock. The men then proceeded with but little delay to the home of Combs. When they arrived at a point on the highway in front of the home of the deceased they were accompanied by Flora Chewning, mother-in-law of defendant. Whether she was with them at the Caplinger home a little while before and accompanied them thence to the home of the deceased or whether she joined them en route is not material. A few minutes after the arrival of these persons at the home of Combs and after he had come out of the house to the road where these people were, a fight ensued in which Combs was mortally wounded by a knife in the hands of defendant. There is a sharp conflict in the testimony as to just what occurred just prior to and at the time of the affray. The widow of the deceased testified that she and the deceased and their eighteen months old child retired about nine o 'clock; after they had fallen asleep some one knocked loudly at the kitchen door, and upon her husband's inquiring who was there the reply came that they wanted something; her husband told them '' he had nothing for them and to leave there", whereupon they started to swear and call him '' all kinds of names''; that her husband then got up and went to the door and again told them he had nothing for them and directed them to leave; that they continued swearing and calling him vile names and asked him to come to the road; that he then shut the door and returned into the room, put on his trousers over his underwear and went out in his bare feet, While he was thus partially dressing himself she put on her dress and stockings; from the house she watched him as he went to the road and saw the men knock him down; she immediately ran to the road and found her husband down on his back with both of the men on top of him, and the Chewning woman "was stooping over." Referring to the men she said "they was just like they was kneeling with their knees toward his stomach and their hands around his throat;'' that she grabbed one of them, later identified as Howell, and pulled him off; defendant then let deceased get up, and "he (meaning deceased) kind of stood up and said 'Buddy, you have got a knife, ' and I tried to grab him and he went down over the hill to the porch." He fell on the porch and was unable to get up again. A physician was summoned and the patient removed to a hospital where he died about an hour or two later. The doctor found several severe knife wounds on the body of the injured man; one on the left side of the body between the third and fourth ribs numbering from the top down was two or three inches in length and reached into the chest cavity; there was a deep gash in the biceps muscle of the left arm; one at the back of the neck; another long one but not deep over the lumbar region or small portion of the back. The patient bled very freely. In the opinion of the doctor the chest wound was fatal.

Two boys, Frank Tote and John Kurrucy, 17 and 18 years of age, respectively, testify that just before the fatal atfray while they were smoking on the porch of the home of Tote's parents just across the road from the home of deceased they saw defendant and his two companions in the road and heard one of the men tell the other that if he would stick with him they would get somebody; that they (the boys) went back into the house and presently, upon hearing a scream, they ran back to the porch and saw the two men and the woman running down the road.

Defendant testifies that after knocking at the door of deceased and asking for whiskey he was told by deceased that he (defendant) was a damned spy and to get away from there; that as he returned to his two companions at the road, he said to them (not intending it for the ears of deceased) that "this damned whop won't let me have any whiskey;" that deceased overheard the remark and accused defendant of abusing him, jerking on his trousers, ran out the front way, made for witness, called him a vile name and told him he would kill him. Defendant says he ran and dodged between Howell and the Chewning woman; that deceased caught defendant, threw him down and with one hand on his throat drew out his knife, told defendant he was going to cut his throat, and tried to open his knife with his teeth; that defendant called for help, but not receiving it, and while resisting deceased with his left hand and arm, he got hold of his own knife with his right hand, opened the knife by hooking it on his pocket, and then cut the deceased. He says Mrs. Combs "jumped in about the time I was cutting the man."

B. H. Howell denies that he was on top of deceased as testified by Mrs. Combs, and gives about the same account as defendant. He says he stood in the road talking to the woman while defendant went to the Combs house; that just about the time defendant returned to the road the deceased came out of the house and made for defendant; "he hadn't more than ketched him and downed him I turned and started to walk back to them. Mrs. Chewning was off down the road. She came walking back and came and asked me to part them, about that time Mrs. Combs came up;" that she told witness to go on off and slung him to one side, and she "piled into them and I walked up the road and stayed there;" that he does not know what she did when she reached the struggling men. Witness...