State v. Ponce

• Citation: 19 S.E.2d 221,124 W.Va. 126
• Decision Date: 10 March 1942
• Docket Number: 9233.
• Parties: STATE v. PONCE.
• Court: Supreme Court of West Virginia

19 S.E.2d 221

124 W.Va. 126

STATE v. PONCE.

No. 9233.

Supreme Court of Appeals of West Virginia.

March 10, 1942

W F. Damron, of Logan, for plaintiff in error.

No appearance by counsel for defendant in error.

RILEY Judge.

Upon a conviction of murder in the second degree, the Circuit Court of Logan County sentenced defendant Joe Ponce to confinement in the penitentiary from five to eighteen years. To that judgment defendant prosecutes this writ of error.

Joe Ponce and Zigmond Stefanski had been good friends for many years. On April 7, 1941, Ponce and four others were engaged in playing a card game known as "rummy" in the village of Whitman, Logan County, West Virginia. The players employed a cardboard box on which to deal the cards, and Ponce was seated on a piece of lumber which had been placed on rocks. Stefanski, described as being twenty-seven years of age, six feet in height and weighing one hundred seventy-five pounds, came to the place where Ponce and his companions were playing. He had been drinking. He wrestled with several bystanders, one of whom (Herbert Hall) "took it to be playful". Stefanski then went to a position behind defendant and, as one witness stated "started to playing with him and hitting him on the head and rubbing him on the head". Defendant testified that Stefanski pulled his hair and then "started pecking with the knuckle on top of my head". Defendant's statement that he asked Stefanski to quit is corroborated by the testimony of witnesses for the State; and when he did not, defendant, according to his testimony, started to get up "to go to the other side", when Stefanski "struck me by the side of the neck". The evidence is conflicting as to whether defendant was "hit" or "shoved"; but it is unequivocally established that defendant fell across the cardboard box into a rock pile; that as he arose therefrom he had a rock in one hand and a brick in the other; and that he threw the rock at, and struck, Stefanski who was then from twelve to fifteen feet from defendant, causing his skull to be fractured and resulting in his death several hours later.

We shall consider first defendant's contentions that the jury verdict of second degree murder is not warranted under the evidence and that the court erred in giving State's instruction No. 2, the material portion of which instruction reads as follows: "The court instructs the jury that if you believe from the evidence in this case that the prisoner, Joe Ponce, committed the homicide charged in the indictment in this case under the heat of sudden passion, excited by some provocation which caused him to throw the rock that killed Zigmond Stefanski, yet which was insufficient to deprive the said Joe Ponce of the power of self-control, in that case he would be guilty of murder in the second degree; ***."

An indispensable element of murder in the second degree is malice. State v. Galford, 87 W.Va. 358 105 S.E. 237; State v. Cassim, 112 W.Va. 92, 163 S.E. 769. There has been judicial recognition that the term "malice" implies "a mind under the sway of reason." State v. Galford, supra [87 W.Va. 358, 105 S.E. 240], wherein this Court speaks of malice thus: "It excludes the idea of sudden passion aroused by an unanticipated and unprovoked battery inflicted by the assailant without the fault of the person assailed. If in such case the death of the aggressor results, even if intentional, it cannot be traced to a malignant heart, but is imputable to human frailty. Passion and malice are not convertible terms, so that an act prompted by the one cannot be said to proceed from the other." Clearly the instant case is one of sudden killing by one not primarily at fault. One witness testified that the accused threw the rock "just as quick as he grabbed it", while another, on cross-examination, estimated that the difficulty between the two men lasted only about five minutes. Certainly, no time intervened between the immediate provocation and the act which resulted in death "within which passion could have subsided and reason regained its dominion." State v. Clifford, 59 W.Va. 1, 52 S.E. 981. In State v. Cassim, supra, the Court said: "Where an affray is provoked by deceased, the use of a deadly weapon by de...