State v. Porter
| Decision Date | 10 March 1925 |
| Docket Number | 5206. |
| Parties | STATE v. PORTER. |
| Court | West Virginia Supreme Court |
Submitted February 17, 1925.
Syllabus by the Court.
A new trial will not be granted in a criminal case for matter that is a principal cause of challenge to a juror, which existed before he was selected and sworn as such juror, but which was unknown to the prisoner, until after the verdict, and which could not have been discovered by the exercise of ordinary diligence, unless it appears from the whole case that the prisoner suffered injustice from the fact that such juror served upon the case.
In general, the mode of proving the violent and dangerous character of the deceased is by showing that such was the general reputation of the deceased in that community and at that time, and that such reputation was known to the defendant; but the defendant cannot be permitted to prove for the purpose of showing reasonable grounds for apprehension of bodily injury or loss of his life, particular instances of violence or viciousness on the part of the deceased, which did not concern the defendant and at which the latter was not present and of which he had no personal knowledge.
Where the specific acts of violence tending to show the dangerous character of the deceased are so connected with the facts and circumstances attending the homicide as to be a part of the res gestæ, such specific acts may be shown in evidence where the accused relied upon self-defense.
It is competent to show that a witness for defendant was charged by a separate indictment together with defendant for the same murder to show his bias or interest.
Instructions to the jury must be taken and read as a whole, and if, being so read and construed, they state the law correctly, and do not misstate it in any particular, and no proper instruction asked for, has been refused, the verdict will not be disturbed on the ground that additional proper instructions could have been given, or that some particular instruction standing alone, might mislead the jury.
The giving of an instruction presenting an abstract principle of law, relevant to facts in evidence, is not cause for reversal, if, read in the light of the other instructions in the case, the jury could not be misled by it.
An instruction containing the clause, "The oath of a juror imposes on him no obligation to doubt, where no doubt would exist if no oath had been administered," is disapproved, though the giving of it is not reversible error.
Where there has been a previous grudge and also an immediate provocation, it is for the jury to determine whether the shooting was induced by the previous grudge or the result of the immediate provocation.
It is well settled that, if intent to take life is executed after deliberation and premeditation, though but for a moment or an instant, the crime is murder in the first degree.
This is not such a case as the appellate court can say that the evidence brings it within the degree of voluntary manslaughter as a matter of law.
Error to Circuit Court, Cabell County.
Harry W. Porter was convicted of first degree murder, and he brings error. Affirmed.
W. T. Lovins, of Kenova, and Poffenbarger, Blue & Dayton, of Charleston, for plaintiff in error.
E. T. England, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.
Harry W. Porter was tried for the murder of Charles Golden Jordan, in the court of common pleas of Cabell county, at the April term, 1924. He was convicted of first degree murder and sentenced to life imprisonment. His motion for a new trial was denied by the trial court. He petitioned the circuit court for a writ of error, which was refused, and he prosecutes his writ here.
Porter and his wife had lived in Huntington for some time. Ethel, the wife, owned a taxicab business, and Porter helped her to conduct it. She drove taxicabs herself and was about the office much of the time. Jordan came to Huntington in the latter part of the year 1923. He became acquainted with and is said to have paid attention to Porter's wife. There is considerable evidence concerning this intimacy, and the feeling engendered between deceased and defendant because of it. The homicide, admitted, occurred on the 12th of March, 1924, about 3 o'clock in the morning. At the trial the defendant relied upon self-defense.
On the evening of the homicide, some time near 11 o'clock, Ethel was informed that her husband was at Bettie Church's, and shortly after midnight she also went there. On being told her husband was upstairs, she went up to where he was in Bettie Church's room. She found Bettie sick and the doctor there. While she, her husband, and the doctor were in Bettie Church's room, Jordan arrived, together with Gibson and Kelly, both taxi drivers of the Rose Taxi, and Jordan asked for Ethel. Lillian Dean, a girl living at the house, called Ethel downstairs. There is a sharp conflict in the evidence as to just what happened at this time. While Lillian and Ethel contend that Jordan drove Ethel from the house at the point of a gun, and compelled her to go away with him, Gibson states that he never saw a gun; that Lillian told him (Gibson), as she and Ethel came down, if he saw Harry coming down to let Ethel know; that Ethel went into the room where Jordan was waiting; that she talked two or three minutes to Jordan, laughed, turned, and walked out the side door; that a few moments later Jordan stepped out to the driveway, where Ethel was waiting with the car door open; and that they drove off together. Lillian Dean testifies that she went upstairs and told Porter:
Porter left the house at once. Porter states that he went to his taxi office, got a 38 Smith & Wesson Special and cartridges, went to the Rose Taxi office, asked Lafferty if he had seen his wife, and received a negative answer. Lafferty testifies that Porter did not make any inquiry as to his wife, but inquired concerning Jordan, and that he said:
According to Porter, he again went to his office, and from there again to Bettie Church's to inquire if Ethel had been there since he left. He returned to his office, where he was told by Moore, one of his drivers, that Ethel had just called in, stating that her car was stalled at the foot of Twenty-Second street, and requesting some one from the garage to come and pull the car out of the mud. Moore started to take Porter to relieve his wife. They found Jordan on a street corner a couple of blocks up from the river front. Moore inquired of the whereabouts of Ethel. Jordan denied any knowledge of her whereabouts, and stated that he had a car stuck at the foot of Twenty-Second street. Moore started to drive on, when Porter, on looking back, saw a wrecking truck approaching Twenty-Second street. He told his driver to turn and see if Jordan got on the truck. They passed just as Jordan got on the truck, then turned again, and followed the truck down a few blocks, until it turned off to another street and went back in the direction of the city. Porter testified that he failed to see his wife's car out on the river bank and decided to follow the wrecking truck back to the city. From another witness it seems that this truck returned to the Fourth street garage to get chains. At one of these stops, little 11 year old Gertrude Mathews at No. 2131 Washington avenue, heard a conversation between one whom she recognized by an impediment in his voice to be Porter, and another, in which the unknown person said: "You had better not do that; you will get put up; they'll put you up," and to which Porter replied: "I don't give a damn; I am going to kill him before morning, if it is the last thing I do," and then they drove off. Porter states that they returned to the taxi office, inquired for Ethel, and was told she had not returned; they then went to the Fourth avenue garage, where they heard men getting chains out and some one (he took it to be Jordan's voice) say that "there was going to be a free for all down on the river bank." Smith, the truck driver, testified that he (Smith) made such a statement to the boys in the garage, but was only "kidding."
Porter further states that he and Moore then hurried back to the taxi office for a 25-20 rifle and a box of cartridges. They again started out in the car, which it was shown had no side curtains up, and ran out of gas 'phoned for another car; and Lear Lester came with another Cadillac, with curtains up. Porter got in the front seat, Moore in the rear, and Lester drove the car. They recognized a Buick from the Rose Taxi approaching. Porter directed Lester to let it pass, but it did not pass. Porter's car stopped, so did the Buick, and a few words passed between Porter and Jordan. Porter's car resumed the trip, and likewise the Buick. Porter's car now turned into Washington avenue, headed east. He ordered it stopped again. The car stopped this time directly in front of house No. 1051 Washington avenue, and on the same side of the street. The Buick came to a stop on the opposite side of the street. Jordan called to Lear Lester to come over, and asked if he was sure Harry was going to pull Ethel out of the mud hole, or whether he was looking for him. Lester informed him that Porter was going for Ethel. Jordan then asked Lester to tell Porter to come over, to which Porter replied...
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