State v. Panetta.

• Decision Date: 25 November 1919
• Citation: 85 W.Va. 212
• Parties: State v. Panetta.
• Court: West Virginia Supreme Court

85 W.Va. 212

State

v.Panetta.

Supreme Court of Appeals of West Virginia.

Submitted November 18, 1919.

Decided November 25, 1919.

1. Criminal Law Homicide Evidence Identification of Goat of Deceased and Indication of Bullet Holes. In a murder trial it is permissible for a witness, who saw the body of deceased shortly after the homicide and observed the bullet holes in the coat worn by him at the time he was killed and also the fatal bullet wounds on the body after it was stripped, to identify the coat and point out to the jury the bullet holes in it corresponding to the bullet wounds on the body. (p. 215).

2. Homicide Evidence Showing Necessity for Self-defense.

Where the homicide is admitted and the accused seeks to justify it on the ground of self-defense, it is prejudicial error to refuse to allow the accused to answer the question: "I want you to tell this jury why you shot" deceased, it appearing that she would have answered that she shot deceased to prevent him from assaulting her in her own home, and believed it was necessary to protect herself; the error in ruling out such question and two or three others of similar character in succession, when it is made to appear that the witness' answers would have been material to her defense, is not cured by permitting the witness, a little later in her examination, to answer the following question: "At the time you shot James Areno were you afraid that James Areno was going to do you harm?" (p. 216).

3. Witness Impeachment on Collateral Matters State Bound

by Answers of its Own Witness.

When matter material to the defense is brought out on cross-examination of one of the State's witnesses, and the State by redirect, or cross-examination seeks to discredit the witness as to the matter favorable to the defense, the State is bound by the witness' answers on such redirect cross-examination, and can not introduce evidence to impeach his statements. Neither is it permissible to impeach a witness upon matters collateral to the issue,. (p. 217).

4. Criminal Law Homicide Instruction as to Form of Verdict

Permission.

In a trial for murder it is not error for the court to instruct the jury respecting the various kinds of verdict they have the power to render, "as the evidence may warrant," including therein a verdict of not guilty, but omitting to mention a verdict for assault and battery. The omission in such instruction to tell the jury they must believe from the evidence, beyond all reasonable doubt, the guilt of the accused is established before they can render a verdict of guilty, is not error when the jury are fully advised as to the degree of proof required to convict, by other instructions. (p. 218).

5. Homicide Malice Essential Element of Murder Inference

from Use of Deadly Weapon.

Malice is an essential element of murder either in the first or second degree, and where an intentional homicide by the use of a deadly weapon is admitted, the jury may infer malice, willfulness and deliberation from the act; and by legal malice is meant not only such as may exist against the deceased, but includes such disposition of the accused as shows a heart regardless of duty and fatally bent on mischief. (p. 218).

6. Same Existence of Malice Time.

Malice need not have existed for any particular length of time before the homicide, but may spring into the mind of the accused at the very instant of the commission of the act. (p. 218).

7. Criminal Law Repetition of Instructions.

It is proper to refuse instructions upon points of law covered by other instructions given; instructions need not be repeated. (p. 218).

8. Homicide Burden of Establishing Justification.

Where the homicide is admitted and justification is relied on, the burden is upon the accused to establish it by a preponderance of the evidence, but in determining the question the accused is entitled to have the jury consider all the evidence, facts and circumstances of the case. (p. 221).

9. Criminal Law Taking Demonstrative Evidence to Jury Room.

It is within the sound discretion of the trial court to permit weapons used in the commission of the crime and the garments worn by deceased at the time he was killed showing marks of violence, which have been identified and given in evidence, to be carried by the jury to their room when they retire to consider of their verdict. (p. 222).

Error to Circuit Court, Mineral County.

Teresa Panetta was convicted of voluntary manslaughter, and she brings error.

Reversed, and remanded for a new trial.

E. T. England, Attorney General, and Charles Ritchie, Assistant Attorney General, for the State.

Robt. McV. Drane and Taylor Morrison, for plaintiff in error.

Williams, Judge:

Teresa Panetta was indicted for the murder of one James Areno, tried and convicted of voluntary manslaughter, and sentenced to an indeterminate confinement in the penitentiary of not less than one nor mora than five years, and she brings error. The homicide occurred about seven o'clock on the morning of the 2nd of April, 1918, after defendant's husband had gone to his work. She is the only eye witness to the tragedy, and swears deceased entered her house by the front door by means of a key, just after she had gotten out of bed and started down stairs. She says Areno made an indecent proposal to her, and was coming up the stairs and caught hold of her to assault her; that she pushed him back and told him to go out of the house, but that he refused to go and kept on coming up the steps toward her; that she ran up the stairs to her bed room, the door of which opened right at the head of the stairs, got her husband's revolver off the top of the dresser, just inside the door, and again told him to go, but he kept advancing toward her sidewise, with his right arm over his forehead, and she immediately fired two shots at him; that he then turned and went down stairs, and she followed him, to open the door and let him out through the kitchen; that he took hold of her again and she again shot him. and he fell on the kitchen floor and expired in a few minutes. In about ten minutes afterwards, she says she went to where her husband was working, told him she had killed deceased, then went to the police station and surrendered herself to the officer. She says deceased had a key to the door, which enabled him to get in the house, but does not know where he got it; that he had previously boarded with her and her husband, but that about five months before the killing they had turned him away. She admits she shot and killed deceased, but claims she did so to protect herself from a felonious assault which he was attempting to commit upon her.

Dr. Z. T. Kalbaugh and Lee Hutchinson, an assistant undertaker, both of whom saw the body about an hour after the homicide, testify that there were three bullet wounds on the body. Dr. Kahlbaugh says, "One a slight abrasion on the left arm; one entered below the right shoulder blade and the other down the back further." Either of the two wounds in the body, he says, was fatal. Hutchinson corroborates the doctor, as to the number and location of the wounds.

The first error assigned is, that the witness Hutchinson, over defendant's objection, was permitted to point out the bullet holes in the coat and explain to the jury which of them corresponded to certain bullet wounds on the body. The instrument with which a homicide is committed and the articles of clothing worn by the deceased, showing marks of violence, are parts of the res gestae and admissible in evidence. This witness examined the body after it was stripped, and also saw it with the coat on, and identified the coat as the one worn by deceased at the time of the homicide. He was, therefore, competent to identify the bullet holes in the coat with the bullet wounds on the body. State v. Welch, 36 W. Va. 690, and State v. Henry, 51 W. Va. 283.

Defendant is an Italian, unfamiliar with the English language, and had to testify through an interpreter. She was asked this question by her counsel: "I want you to tell this jury why you shot James Areno?" The court sustained an objection to the question, and refused to permit her to answer it. It was shown that, if permitted to answer, she would have said she shot him to prevent him from assaulting her in her home, and that she believed it was necessary to do so to protect herself. The question was then put in this form: "You may state whether or not it was by reason of what had occurred there and about which you have just told the jury that caused you to shoot James Areno?" It was stated by counsel that she would have answered "yes", if permitted to answer. She was then asked the following question: "Tell the jury what James Areno in your belief came there for?" Counsel stated, if she where permitted to answer, she would say she believed James ceno was about to commit an assault upon her and outrage her erson. The court sustained objections to all these questions and refused to permit witness to answer any one of them. It was prejudicial to defendant, we think, not to permit her to answer at least the first of said questions. Her mental attitude toward deceased, at the instant she shot him, was material to her defense. The circumstances detailed by her may have been sufficient to satisfy the jury that she had reasonable grounds to believe that deceased intended to commit a felonious assault upon her, but that alone would not justify the killing, she must not only have had reasonable ground for such belief but she must also have actually believed that the killing was necessary to prevent it, and that depended upon her state of mind, as to which she was competent to speak. In a murder trial, where one of the issues is self-defense, the accused should be permitted to testify concerning bis belief and feelings as to the conduct of the deceased at the time the fatal shot was fired or blow was struck. State v. Alderson, 74 W. Va. 732. In State v. Evans, 33 W. Va. 418, this court held: "Since the passage...