State v. Preece
| Decision Date | 12 March 1935 |
| Docket Number | 8010. |
| Citation | 179 S.E. 524,116 W.Va. 176 |
| Parties | STATE v. PREECE. |
| Court | West Virginia Supreme Court |
Submitted February 26, 1935.
Syllabus by the Court.
1. Affidavits to the effect that a member of the jury in a criminal trial had, prior to the trial and unknown to the defendant and his counsel, made statements showing marked prejudice to the accused, are not sufficient to justify the setting aside of a verdict of guilty, where it appears that the juror in question had, on voir dire, stated that no reason existed to prevent his giving the accused a fair trial, and it is not shown that the accused actually suffered prejudice due to the fact that the juror served.
2. Affidavits of jurors to the effect that, upon the trial of a criminal case, they misunderstood certain material evidence of the defense, and that upon a different and correct understanding of the same evidence their verdict would have been different, will not be considered on motion to set aside a verdict.
3. Self-defense as a justification for homicide is not necessarily based upon actual necessity; if the circumstances were such as to cause a reasonably prudent person to believe and if the accused did believe, that the killing was necessary then, the other elements thereof being present, the defense is valid.
4. A man attacked in his own home by an intruder may invoke the law of self-defense without retreating.
Error to Circuit Court of Mingo County.
H. W Preece was convicted of voluntary manslaughter, and he brings error.
Judgment reversed, and cause remanded.
W. H D. Preece, of Williamson, and Frank Lively, of Charleston for plaintiff in error.
Homer A. Holt, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen., for the State.
H. W. Preece was convicted in the circuit court of Mingo county of voluntary manslaughter for the killing of W. K. Fine at Williamson on February 10, 1934. To the judgment of the court sentencing him to five years' imprisonment in the penitentiary, he prosecutes this writ of error.
Self-defense in the protection of his home was relied upon by the defendant, and, since the assignments of error are in the main based upon the state of the proof, it will be necessary to give the evidence in some detail.
The deceased, W. K. Fine, was a man of medium height, weighing about 150 pounds, and 49 years of age. He was employed as a hostler foreman in the yards of the Norfolk & Western Railway at Williamson. A little after 7 o'clock on the morning of February 10, 1934, having concluded his night shift, he left his place of employment in company with W. R. Wolford, age 22, who had that day been promoted from the position of messenger to that of machinist apprentice in the railroad yards. They went from the railroad yards to the east end of Williamson, which is about a mile from where the defendant lived, and there they bought a "short pint" of whisky, the bottle containing ten or twelve ounces. This they drank, and afterward went to where Wolford resided with his married sister on Reservation Hill and stayed there fifteen or twenty minutes. Fine started home. Deciding that they wanted another drink, they went to a place on Fourth avenue and got a half pint more whisky and drank that. On leaving the Fourth avenue place, Fine decided that he wanted to see Bill Ferguson. Wolford knew that Ferguson lived with Preece, and they went to the Preece apartment on Fifth avenue.
There are no sketches of this building, either of the floor plan or of the outside elevation, in the record, and the descriptions of it by the witnesses are by no means clear, due in part to the fact that they frequently illustrated relative positions in ways that the transcript fails to make clear. However, it was a two-story building facing Fifth avenue. It contained four apartments, two downstairs and two upstairs. There was a porch across the downstairs front, and at the middle of the building there were twin stairways extending from a hallway eight or ten feet deep to the second floor. These stairways were separated by a partition and were approximately three feet wide. It does not appear whether the partition separated the hallways at the bottom of the stairs or not, although there was a railing that divided the outside porch in the same manner that the stairway was divided by the partition on the inside. N. A. Smith occupied the apartment on the right downstairs. Mrs. Frank Sloan occupied the downstairs apartment on the left. Preece occupied the five-room apartment on the left upstairs, and Bill Ferguson rented a room in the apartment on the right upstairs, but spent most of his time in the Preece apartment, where he often slept. The two upstairs apartments were connected by a back hall, where there was a door through the partition. There was a hallway or landing at the head of the stairs on each side of the partition from which each upstairs apartment was entered. The upstairs apartment rooms open onto a hallway, and the door of Preece's bedroom was approximately eight feet from this landing. The arrangement of rooms does not satisfactorily appear, nor does the location of the hallway. There was no back stairway to Preece's apartment, although there probably was to the apartment upstairs on the right.
When Fine and Wolford, shortly after 9 o'clock, got to this building, they went to the Smith apartment on the right downstairs and asked for Bill Ferguson. They were told by Mrs. Smith that he was upstairs in the Preece apartment. They stepped over the railing on the porch and went upstairs to look for Preece. On the upstairs landing, they encountered Preece, and had some words with him that caused Ferguson to come out on to the landing and join in persuading Fine to leave. Wolford and Ferguson took Fine downstairs, but when he got to the downstairs hallway, he broke away from them, made his way up the stairway, and was there shot by Preece, dying within five minutes. The stairway was dimly lighted, but, besides the deceased, there were two persons present at the bottom of the stairway, Wolford and Ferguson, and two at the top, Preece and Jim Cole, a colored man 72 years of age, who was there doing some cleaning for Preece. Preece is 63 years of age, and although his height and weight do not appear in the record, it is testified that he was a considerably larger man than Fine. It is upon the testimony of these witnesses, Wolford, Ferguson, Cole, and Preece, that the actual circumstances and conditions surrounding the shooting must be determined. It is therefore necessary to give their testimony in some detail.
Wolford states that he and Fine went upstairs and that at the top of the stairs they encountered Preece. He says that they told Preece they were looking for Bill Ferguson, and that Preece told them they were both drunk and to get out, stating that Bill Ferguson had worked all night and was in bed. He says that thereupon Fine shook his finger in Preece's face and stated that they did not come there for any trouble; that then Preece gave Fine a push, telling him that Bill Ferguson was in bed and for him to go out. He says that when Preece shoved Fine, Fine swore at him and called him a bad name. He states that then Ferguson and he managed to get Fine to the bottom of the stairs, and that Preece was at that time leaning over the banister, shouting for them to get out and that they had no business there. He says that Fine got mad and broke loose from them and started back up the stairs and that he started after him. He states that Ferguson grabbed him and that he heard Fine say that he was going back up and "whip that old (vile epithet)." He states that he was not looking in the direction of Fine and Preece when the shot was fired, but that immediately after the shot was fired, he looked up and saw Preece leaning over the banister with the gun in his hand and just taking it back from over the banister. He saw Fine fall and went out to a nearby lunch stand and called the police. He says that as Fine started up the stairs he had his overcoat on, but that afterwards, when he returned to the scene of the shooting about five minutes later, he saw the overcoat about halfway up the stairs. When he got back to the scene of the shooting, he went upstairs and was under the impression that Bill Ferguson was the man lying on the floor. He got back just about the time that Fine died.
Bill Ferguson testified that he knew both Fine and Wolford and was on friendly terms with Preece. He had returned from work that morning and was in the sitting room of Preece's apartment. He had not removed his clothes nor had he gone to bed. He heard some one cursing out at the head of the stairs and when he went out, "these fellows" were out there, and Preece was telling them to go on down the stairs; that he didn't want to have any trouble with them. Ferguson walked in between Preece and the two other men and took "them" by the arm. Preece shoved Fine and told him to go on down; that he didn't want to have any trouble with them. Ferguson said, "Go on down and I will go with you." They started down the stairs and started to go out. The front door seemed to be fastened some way. Fine jerked loose from him, wheeled around, jerked his overcoat off, and took back upstairs, swearing and saying, "I am going to go back and kill the damn (vile epithet)." He didn't watch Fine go up the stairs any further, because he was talking with Wolford and trying to keep him from going back. He did not notice what Fine did as he went back up the stairway, but knows of nothing that Preece did showing an intention to hurt Fine before he started back up the stairway. He says that both Wolford and Fine acted as though they were drunk, and that Wolford was still drunk after the...
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