State v. Painter

• Decision Date: 12 February 1951
• Docket Number: No. 10300,10300
• Citation: 63 S.E.2d 86,135 W.Va. 106
• Court: West Virginia Supreme Court
• Parties: STATE, v. PAINTER.

Page 86

63 S.E.2d 86

135 W.Va. 106

STATE, v. PAINTER.

No. 10300.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 12, 1950.

Decided Dec. 12, 1950.

Rehearing Denied Feb. 12, 1951.

Syllabus by the Court.

1. A judgment of conviction will not be reversed because of intemperate language used by a prosecuting attorney in his opening statement to a jury, which does not clearly prejudice the accused or result in manifest injustice.

2. Drunkenness of the accused is not a defense to a charge of murder of the first degree, but evidence of intoxication is admissible to show that accused was so intoxicated as to be incapable of premeditation and deliberation, and thus reduce the offense from murder of the first degree to murder of the second degree, provided the defendant did not intentionally become intoxicated so as to prepare himself for the commission of the crime.

3. Permanent insanity produced by chronic disease, the continued use of intoxicating liquors, the use of narcotics, or a combination of such, is a defense to a criminal charge; but where the evidence is sufficient to convince impartial minds that the accused knew right from wrong when the crime was committed, although the evidence on behalf of the accused conflicts therewith, the verdict will not be disturbed on that ground.

4. Temporary insanity not produced by excessive use of intoxicants is a defense when the existence and temporary nature of the disease is established by proof. 5. In this jurisdiction a defense that the accused was moved by irresistible impulse to commit a crime is not recognized.

6. Although a homicide is committed by means of the hands and feet of the accused, the violence and barbarity of repeated blows inflicted in the deceased form a sufficient basis for an inference of malice.

7. A motion in arrest of judgment will not be sustained except for errors apparent on the face of the record, and under Code, 62-2-11, the criminal statute of jeofails, such motion does not have the same effect as at common law.

8. Chapter 37, Acts of the Legislature, 1949, Regular Session, authorizing infliction of the death penalty by electrocution in certain instances is not repugnant to Section 5, Article III of the Constitution of this State and the Eighth Amendment to the Constitution of the United States of America prohibiting cruel, unusual and disproportionate punishments for crimes.

9. A judgment of conviction will not be interfered with on the ground that improper evidence has been admitted, or proper evidence has been rejected, unless it appears that the trial court clearly erred.

10. It is not error in the trial of an indictment for murder of the first degree when based on sufficient evidence to give the following instruction: 'The Court instructs the jury that where an unlawful homicide is proved, the presumption in this state is that it is murder of the second degree, and the burden is on the state of showing, if she can, that it was murder of the first degree; and upon the accused of showing, if he can, that it was without malice, and therefore only manslaughter, or that he acted lawfully, and is therefore not guilty. The Court further instructs the jury that in arriving at a verdict in this case as to the degree of guilt, if any, the jury should take into consideration all the evidence and circumstances in the case, that given both of the state and the defendant.'

11. The giving of instructions in a homicide case stating correct and applicable principles of law, is not error, where there is evidence to justify their application.

12. The refusal of instructions stating inapplicable and incorrect legal principles is not error.

13. It is not error to refuse instructions covered by other instructions which are given.

14. The modification of instructions stating incorrect legal principles, and the giving of such instructions, when properly modified, are not error.

Salisbury, Hackney & Lopinsky, D. Boone Dawson, and Lon G. Marks, all of Charleston, plaintiff in error.

William C. Marland, Atty. Gen., George W. Stokes, Asst. Atty. Gen., defendant in error.

LOVINS, President.

Fred Clifford Painter, hereinafter designated as defendant, prosecutes this writ of error to a judgment of the Circuit Court of Kanawha County, West Virginia.

The defendant and Harry Atlee Burdette were jointly indicted by a grand jury of Kanawha County for the murder of Edward C. O'Brien. They were given separate trials. The State elected to try Burdette first, his trial resulting in a conviction of murder of the first degree. In accordance with the verdict, Burdette was sentenced to be 'punished with death'. The decision of this Court on a writ of error granted Burdette is shown by the opinion in the case of State v. Burdette, W.Va., 63 S.E.2d 69, filed contemporaneously with this opinion.

The facts, stated in the opinion in State v. Burdette, supra, with the exceptions hereinafter noted, are substantially the same as the facts in the instant case and will not be restated in this opinion.

In addition to the facts stated in the opinion in State v. Burdette, supra, a witness for defendant, Frank A. Blum, testified that he was an eye witness to the altercation in which O'Brien lost his life; that Burdette and Painter were 'extremely' drunk; that O'Brien has a small open knife in his left hand during the fight; that O'Brien was knocked down and that Burdette kicked O'Brien about the head and shoulders several times; that Painter kicked at O'Brien, but the witness believed that the defendant did not touch O'Brien; that the witness then went after the police; and that upon his return to the scene there were two officers present and the fight had ended.

Defendant introduced the testimony of Burdette, his co-defendant, the material part of which is substantially as follows: That the witness and defendant purchased four pints of liquor; that the defendant and the witness drank that amount of liquor before they left the Club Poolroom; that the witness, the defendant, and another person drank a portion of another pint of whiskey; and that the defendant had two drinks out of another bottle of whiskey owned by an acquaintance.

Burdette also testified that the defendant purchased eight 'yellow jacket' capsules; that he took two of the capsules; and that the defendant took at least two of such capsules.

The testimony of Burdette relative to the fight with O'Brien differs from that of some of the other witnesses. According to Burdette, O'Brien and the defendant were engaged in the altercation when Burdette crossed Summers Street; that O'Brien had a knife and was attempting to cut the witness; that he tried to prevent O'Brien's cutting him; that he did not see the defendant touch O'Brien and did not know whether the defendant actually did touch O'Brien; and that during the fight he, Burdette, was dazed.

Two laymen testified that the defendant suffers from syphilis. A physician introduced by defendant testified that the defendant is afflicted with cerebral syphilis; and considering that fact with the fact that defendant, prior to the homicide, had drunk a considerable quantity of intoxicating liquor and had taken two capsules, presumably containing barbitol or a barbitol derivative, the defendant did not know the nature and consequences of his acts, and therefore did not know right from wrong. The physician so testifying based his diagnosis of cerebral syphilis on the results shown by Hinton, Mazzini and Kahn tests for syphilis, and possibly a Wasserman test.

A physician called by the State gave his opinion that if defendant prior to the homicide had consumed the amount of intoxicants testified to by defendant's witnesses and had taken the two capsules hereinabove mentioned, he would have been prostrate and that the effect of the narcotic drugs taken by defendant would have been comparable to an anesthetic. The physician called by the State also testified that from an examination of defendant made on the day the witness testified, he concluded that the defendant at the time of the trial was 'a man of low average intelligence'; that an accurate diagnosis of cerebral syphilis could not be based on the Hinton, Mazzini and Kahn tests; that in addition to such tests the patient's history should be given; and that the patient should likewise be given a urological test, a blood count, and his spinal fluid should be examined.

Upon the evidence stated in the opinion of State v. Burdette, supra, and additional evidence herein stated, the jury found the defendant guilty of murder of the first degree.

After overruling a motion to set aside the verdict as being contrary to the law and the evidence, the intermediate court adjudged that the defendant 'be punished with death'. The judgment of the trial court having been pronounced, defendant moved the court in arrest of judgment, which motion was likewise overruled.

The Circuit Court of Kanawha County denied defendant a writ of error holding that the judgment of the intermediate court of that county is 'plainly right'. The case was brought to this Court by writ of error to the judgment of the circuit court.

Defendant contends that it was error: (1) To overrule the demurrer to the indictment and a motion to quash the same; (2) to permit the prosecuting attorney in his opening statement, over objections of defendant, to state, 'The State expects to offer evidence to prove the commission of the crime which for heinousness, orneryness and plain cussedness it is difficult to conceive.'; (3) to overrule the motion to set aside the verdict and refuse to grant defendant a new trial; (4) to overrule a motion in arrest of judgment; (5) to sentence defendant to death under the evidence and circumstances established in this case as inflicting cruel and unusual punishment in violation of Article III, Section 5 of the Constitution of this State, and the 8th Amendment to the Constitution of the United States; (6) to admit...