State v. Perkins
| Decision Date | 11 November 1947 |
| Docket Number | 9896. |
| Citation | 45 S.E.2d 17,130 W.Va. 708 |
| Parties | STATE v. PERKINS. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
'In the trial of a criminal case the jurors, not the court, are the triers of the facts, and the court should be extremely cautious not to intimate in any manner, by word, tone, or demeanor, his opinion upon any fact in issue.' Pt. 7 Syl., State v. Austin, 93 W.Va. 704, 117 S.E 607.
F. F Scaggs, of Wayne, for plaintiff in error.
Ira J Partlow, Atty. Gen., and J. Chandler Curd, Ass't. Atty. Gen., for defendant in error.
Katherine Perkins was indicted by a grand jury of Wayne County for the murder of her husband, P. P. Perkins. She pleaded not guilty, was tried and convicted of murder of the second degree, and sentenced to imprisonment for a term of five to eighteen years. She brings the case here by writ of error.
On the evening of September 1, 1944, defendant, while riding in the automobile of a friend on Monroe Avenue in the City of Huntington, observed her husband in his automobile embracing a woman. At the request of defendant, the automobile was stopped, and defendant then went to the vehicle in which her husband and his companion were seated, and there engaged in a fight with the woman. The husband interfered in the struggle, enjoined defendant not to hurt his companion, and finally hit and kicked defendant several times. The defendant reentered her friends's automobile and returned to her home in the Town of Ceredo.
About ten o'clock p. m. of the same day, the husband returned to his home, and, according to defendant's testimony, he was angry and inclined to be violent. The quarrel between defendant and her husband was renewed and ended by the husband striking and kicking the defendant. After committing the second assault on defendant, the husband left his home and did not return until about midnight. Upon his return home he occupied a room on the second floor of his residence different from that which he and defendant had been wont to occupy. The defendant slept for the greater portion of the night in the room of her son and daughter-in-law.
On the morning of September 2, 1944, defendant prepared breakfast for a boarder, herself and her family. She and her daughter-in-law ate breakfast together, after which defendant went to the business section of the town for the purpose of paying a grocery bill. At some time during the morning defendant went to the home of a witness who testified for the State, where the witness said she saw a firearm in the possession of defendant, and that defendant indicated that trouble was about to occur.
Defendant returned to her home, went to an upstairs bedroom, and began combing her hair. While doing so her husband came to the door; severely criticized defendant on her conduct in fighting the night before; said in substance that he was not further interested as he was leaving and started toward defendant, saying, 'I will break your God damned neck.'
The record is not clear as to what took place after the threat had been made by the husband. Defendant does not admit shooting her husband, but it is a reasonable inference, well supported by the facts, that she shot the deceased three times. One bullet entered his right shoulder, one about the middle of his right thigh, and another at the ninth dorsal vertebra. All bullets entered from the back. It is also a reasonable inference that defendant shot herself in the forehead, a pistol having been found near her body in the upstairs hall, and she was bleeding from a gunshot wound in her head.
The pistol found near defendant's body was offered as an exhibit, and was fairly well identified as belonging to a boarder and roomer, who stayed at the home of defendant and her husband, and whose room was on the first floor thereof. The neighbors of defendant were summoned and upon their arrival at the scene of the shooting, the husband, who had fallen down the stairway to the first floor, requested them to go up-stairs and see about 'Kate', adding that he was to blame for the shooting. Another witness testified that on the way to the hospital in the ambulance defendant stated she was sorry she had not killed her husband and applied to him a vile epithet.
The husband was taken to a hospital, where he remained under treatment until the 8th day of April, 1945, when he left the hospital and returned to his home, where he died on April 16, 1945.
Defendant contends that the court committed the following errors: (1) In permitting an attending physician, prior to any proof of the cause of death, to give in evidence his opinion as to the cause of deceased's death; (2) in refusing to give defendant's instruction No. 3; and (3) by overruling defendant's objection to the cross-examination of defendant by the judge.
A physician who attended the deceased during the time he was in the hospital was introduced by the State to show the cause of death. The following question was asked: 'Assuming the death of Plummer, or P. P. Perkins, to have been on April 16, 1945, basing your answer upon your experience and observation of this particular case in your hospital, what, in your opinion, was the cause of his death?' Defendant's objection to the foregoing question having been overruled, she now contends that the question was hypothetical and that the hypothesis on which the question was based had not been proved. We do not agree with that contention. The physician had testified before the above question was asked that the wound in the dorsal vertebra was the fatal wound, and that the death of decedent was caused by exhaustion due to sepsis, the result of the gunshot wound. Furthermore, before the question was asked and answered, the State introduced a portion of the public record showing that the death of deceased was caused by exhaustion. Proof of the cause of deceased's death was timely offered, and such proof constituted a sufficient factual premise for a hypothetical question, if such question had been asked.
But the question here objected to is not hypothetical. True, the physician was asked to assume that deceased died on April 16, 1945, but the date of the deceased's death had already been established by undisputed proof. Certainly, the physician who attended and treated deceased knew of his death and probably knew the date thereof, deceased having died about eight days after he left the hospital. The physician, having personal knowledge acquired by his own observation, knew the cause of death, was not precluded from answering the question, and could testify directly as to the cause of death. 2 Wharton's Criminal Evidence, 11th Ed., Section 1021; Underhill's Criminal Evidence, 4th Ed., Section 237. In support of her contention that the question and answer were improper, defendant cites the case of State v. Barker, 128 W.Va. 744, 38 S.E.2d 346. This Court, in considering a hypothetical question propounded in the Barker case, held that it was error '* * * to permit a hypothetical question, bearing on the cause of decedent's death, to be addressed to a medical witness, which question contains a factual assumption concerning which there is no evidence or admission.' In the case at bar the only assumption contained in the question objected to concerned the date of deceased's death. The fact of his death, the date of his death, and the cause of his death, had been established prior to the asking of the question objected to by defendant. The trial court ruled properly in admitting the testimony of the physician as to the cause of deceased's death.
The court refused to give defendant's instructions Nos. 3, 7, 8, and 9. However, the only error assigned with reference to such refusal relates to instruction No. 3, and, therefore, we shall only discuss the action of the court with reference to said instruction.
Instruction No. 3 embodied a statement of the law of self-defense. The instruction was refused on the ground that there was no evidence, either on the part of the State or defendant, supporting an instruction on self-defense. The record in this case has been carefully examined. The acts of violence perpetrated by the deceased on defendant on the night preceding the shooting, as well as the threat made by deceased just prior thereto, have been considered. Mere words, unaccompanied by an overt act, are not sufficient to justify an instruction to the jury on the theory of self-defense. State v. Snider, 81 W.Va. 522, 94 S.E. 981. Defendant was probably smarting from the indignities occasioned by the two assaults committed on her prior to the shooting, but when the deceased encountered defendant at the time of the shooting, there was no overt act committed by deceased. There is testimony that he started toward defendant at the time of the threat but that fact does not constitute an overt act. The record does not disclose what took place after the threat was made, as the defendant states that her mind is blank as to what was done by her or the deceased after the threat. Instruction No. 3 assumes that deceased made an attack on defendant. There is no showing of such fact in the record, nor is there sufficient evidence which tends to prove that such attack was made. The instruction comes within the rule laid down in the third point of the syllabus in State v. Barker, 92 W.Va. 583, 115 S.E.
421. See State v. Weissengoff, 89 W.Va. 279, 109 S.E. 707; State v. Frank Zinn, 95 W.Va. 148, 120 S.E. 387; State v. Newman, 101 W.Va. 356, 132 S.E. 728.
Facts necessary to support the theory of self-defense are not shown in this record. On the contrary, it is undisputed that all of the bullets inflicting wounds on deceased entered from the rear, which militates...
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