State v. Price
| Decision Date | 12 December 1922 |
| Docket Number | 4424. |
| Citation | 115 S.E. 393,92 W.Va. 542 |
| Parties | STATE v. PRICE. |
| Court | West Virginia Supreme Court |
Submitted November 22, 1922.
Syllabus by the Court.
The statutory requirements respecting the time of issuing writs of venire facias for petit jurors are directory, and a jury appearing in obedience to the command of such writ issued less than 30 days before the day upon which the jurors summoned are required to appear for service is not subject to challenge for that reason.
Nor will the fact that the venire facias requires 32 jurors to be summoned instead of 30, as required by law, be ground for challenging the array or of a motion to quash the panel or writ of venire facias, even though it be shown that no order was entered providing for summoning more than the number of jurors provided to be summoned by statute.
Nor will the fact that the clerk did not sign the summons to the jury commissioners constitute such ground of challenge or motion to quash, where they appeared at the time appointed and performed the duties required of them.
In a prosecution for murder, it is competent for the state to prove that immediately before the homicide the defendant made inquiries as to the probable movements of the person, or persons, whom he subsequently killed, indicating a purpose on his part to place himself in such position that such person or persons, necessarily must encounter him.
The right of cross-examination of a witness not a party to the suit is limited to inquiries about facts or circumstances brought out on the examination in chief. If it is desired to examine such witness upon other matters, the party must make him his own witness and introduce him as such in the subsequent progress of the case.
It is not error to refuse to permit a witness to answer a question in a particular form, even though the answer thereto is pertinent to the inquiry being conducted, when such witness is permitted to answer the same question in a different form.
It is not error for the trial court to refuse to permit a witness to answer questions, the answers to which could have no materiality or relevancy to any issue involved.
Where it appears that one charged with murder killed two or more persons at the same time and place, with the same weapon, and in the same encounter, evidence of the condition of any one or all of the bodies, showing the cause or means of death, is admissible against the defendant on trial for the murder of any one of the deceased persons.
The refusal of the trial court to permit a question to be answered cannot properly be made the basis of an assignment of error, unless it appears from the bill of exceptions that the answer which would have been given to the question is material to the party offering the evidence, and this materiality may be shown by allowing the witness to answer the question in the absence of the jury, or by stating in the record the answer the witness is expected to make.
While it is proper, in a prosecution for murder, where the defense is insanity, to prove the conduct and conversations of the accused before and after the homicide tending to show the deranged condition of his mind, it is not error to reject the evidence of a declaration made by the accused purely self-serving in its character, and in no way indicating a deranged or disordered intellect.
Upon a trial for murder, where the accused seeks to show that he was insane at the time of the homicide as the result of a disease with which he had been afflicted, it is not material from whom or in what manner he contracted such disease, and evidence offered for that purpose is properly rejected.
In the absence of special circumstances, one introducing a witness has no right to elicit from him the evidence he desires by propounding leading questions, and where the trial court sustains an objection to a question because it is leading, if the party offering the evidence would have the benefit of it he must reform his question so as to overcome the objection upon that ground.
Where one charged with crime defends upon the ground of insanity it is competent for the state in rebuttal to show by persons who were well acquainted with the defendant, and had known him intimately for a considerable time, that they never observed anything indicating that the defendant was insane and to give their opinions that he was sane, without detailing all of the conversations they had with him or all of his conduct which they observed.
Ordinarily, where insanity is relied upon as a defense to crime, it is competent to show that blood relatives of the accused were or had been insane, but before such evidence is admissible the duration and general nature of the insanity of such relatives should be shown, as well as that the accused exhibited signs of insanity of a more or less permanent nature which might be attributed in some degree to heredity.
In order that a ruling of the trial court in granting instructions to the jury may properly be made the basis of an assignment of error in this court, it must be excepted to and the exception saved by proper bill of exceptions.
It is not error for the trial court to refuse an instruction correctly propounding a proposition of law applicable to the case, where the party asking it has been granted an instruction requested by him fully covering the matter contained in the one refused.
Upon a trial for murder, where the accused relies upon insanity as a defense, it is not error to refuse an instruction to the effect that if the accused acted under the influence of a delusion at the time he committed the homicide he would not be responsible if his acts would be innocent in case the facts with respect to which the delusion exists were true, where there is no evidence showing or tending to show any such delusive belief upon the part of the accused.
A witness may be impeached by proving that he has made statements out of court contradictory to testimony given by him upon the witness stand, where such testimony is relevant to the issue.
But there must be contradiction; a witness can be impeached by statements made by him out of court only when such statements are contradictory to his testimony. If there is no substantial variance between such statements and his testimony, the statements cannot be introduced for purposes of impeachment.
And if his statements are only in part contradictory to his testimony, the contradictory portion, for purposes of impeaching the witness, should be admitted, and the portion not contradictory should be excluded.
But a witness cannot be impeached by proving that he has made statements out of court contradictory to testimony given by him upon the witness stand, where such testimony is irrelevant and collateral to the issue; and it makes no difference whether such testimony is given on direct examination or cross-examination.
Error from Circuit Court, Wood County.
George Price was convicted of murder, and he brings error. Reversed and remanded.
T. A. Brown and C. M. Hanna, both of Parkersburg, for plaintiff in error.
E. T. England, Atty. Gen., R. A. Blessing and R. Dennis Steed, Asst. Attys. Gen., and C. N. Matheny and Robert B. McDougle, both of Parkersburg, for the State.
George Price was convicted of the murder of Charles McDonald and sentenced to be executed, and to review this judgment he prosecutes this writ of error.
The defendant resided in the city of Parkersburg, and had been until a short time before the occurrences hereinafter mentioned employed in an industrial plant in that city. Some six or seven years prior to the murder of McDonald he was married to a sister of the dead man, and they had lived together until within two or three months before her death at his hands. One child was born to this marriage. The McDonald family lived in a suburb of Parkersburg, and after the defendant's wife ceased to live with him she returned to the home of her family. There was also living in the McDonald family at this time a girl by the name of Maggie Wigal, whose home was about 15 miles east of Parkersburg at a little post office named Hanna, but who had employment in an industrial plant in Parkersburg, and stayed with the McDonalds when so employed. There was also in the McDonald household another daughter named Rachael, about 18 years of age. On the day before Thanksgiving in the year 1920, Maggie Wigal invited Mrs. Price and her sister Rachael McDonald to go with her to her home in the country to spend Thanksgiving. They accepted this invitation and left Parkersburg on the afternoon of the 24th of November. In order to reach the Wigal home it was necessary to go to Walker's Station, one mile beyond Hanna, and walk back.
On Thanksgiving morning the deceased, Charles McDonald, together with Lindsey Eddy, Pearl Eddy, Alfred Eddy, and Floyd Howley left Parkersburg over the Little Kanawha Railroad, and got off at a station called Hughes' River. Their purpose was to pass the day in hunting. It appears that the five young men engaged in this pastime until about noon, when they crossed the river and had lunch at a store. They then continued hunting until about 3 o'clock in the afternoon, when three of the boys, Charles McDonald, Floyd Howley, and Lindsey Eddy, decided that they would go across to Walker's Station and take the Baltimore & Ohio train at that point for Parkersburg, in that way reaching home sooner than they could by the Little Kanawha Railroad; their purpose being to attend a dance on that evening. Accordingly, these three young men left their two companions and went toward Walker's Station. They came to the Wigal residence where Mrs. Price and her sister Rachael McDonald and Maggie Wigal were. They spent the remainder of...
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State v. Koski
...Cook, 94 W.Va. 166, 117 S.E. 777; State v. Wriston, 93 W.Va. 568, 116 S.E. 9; State v. Laura, 93 W.Va. 250, 116 S.E. 251; State v. Price, 92 W.Va. 542, 115 S.E. 393. it would seem that the jury was fully and correctly advised upon the law governing the case. The evidence of the defendant's ......