State v. Price

Decision Date20 May 1924
Docket Number5065.
Citation123 S.E. 283,96 W.Va. 498
PartiesSTATE v. PRICE.
CourtWest Virginia Supreme Court

Submitted May 13, 1924.

Syllabus by the Court.

A verdict and sentence in a criminal case will not on motion be set aside because contrary to the evidence, if by striking out the defendant's verbal evidence, which is in direct conflict with that of the prosecution, the evidence so considered fully sustains the verdict.

Whether a child of nine years of age is competent to testify as a witness in a cr iminal case is a question which is addressed to the sound discretion of the trial judge; and if it appears that full investigation and examination was made by counsel and the court, in the presence of the jury as to her age, mentality, capacity and legal and moral accountability, which discloses the usual degree of intelligence, memory, and appreciation of the obligation of an oath to speak the truth, the discretion of the trial judge in permitting the evidence to go to the jury will not be disturbed.

A challenge to the panel of jurors summoned to attend a regular session of a criminal court on a day in the term later than the first day thereof will not be sustained on the ground that the judge orally ordered the clerk to issue the venire summoning the jurors to appear later than the first day of the term, and that the order was not entered of record.

The ground on which a challenge to the array of jurors is based must be specifically stated in order that the court and the prosecution may be advised, and the latter may have an opportunity to demur thereto or raise issue of fact thereon and the action of the court in disposing of the issue of law or fact made thereon must be made a part of the record before error will lie.

A challenge to the array because of irregularity in the venire facias, or in the drawing, summoning, or impaneling of the jurors, will not be sufficient to set aside a verdict, unless the challenge was made before the swearing of the jury, or the party was injured by the irregularity.

Error to Circuit Court, Raleigh County.

Bertha Price was convicted of murder in the second degree, and she brings error. Affirmed.

McGinnis Maxwell & McGinnis and C. M. Ward, all of Beckley, for plaintiff in error.

E. T. England, Atty. Gen., and R. Dennis Steed, Asst. Atty. Gen., for the State.


Bertha Price was found guilty by a jury of murder in the second degree upon Emma Smith, and was sentenced on the 5th day of July, 1923, to 15 years' confinement in the penitentiary; from which sentence she prosecutes this writ of error.

The homicide was committed on June 11, 1923, in front of the house of deceased. The accused left her home at Beckley to visit a relative in the town of Skelton about one mile distant, and passed by the home of Emma Smith. On returning from her visit, and while passing by Emma's home, an altercation arose between them, which resulted in the homicide. Emma was shot in the back by a revolver in the hands of the accused. Defendant claims that deceased had the pistol and attacked her with it, and, in trying to disarm the deceased, and while the deceased was choking her, biting her, and threatening to kill her, the pistol then in the hands of the accused was discharged with the fatal result. As is usual in such cases, the evidence of the state is quite to the contrary. The state's witnesses say the accused stopped at Emma's gate and requested her to come to the gate a moment; that after a short conversation Emma started to return to her dwelling, when she was again accosted by accused and went back to the gate. On reaching it the accused pulled her through the gate, struck her with an umbrella, shot her twice with a revolver, and then fled. She was apprehended by the officers while attempting to reach Beckley in a roundabout way. The evidence of the state is amply sufficient to sustain the verdict, and, the jury having passed upon the conflict in the evidence, it cannot be disturbed. The evidence of the accused does not easily accord with the physical facts. The motion to set aside the verdict because contrary to the law and evidence was properly overruled.

Error is assigned because the court admitted the evidence of Carrie Storey, a child of nine years of age, to go to the jury, for the reason that she was of tender years, did not know the obligation of an oath, and hence incompetent. She was the daughter of deceased, Emma Smith, and witnessed the homicide. Her testimony is corroborative of that of other witnesses. Her competency was tested by examination before the court and jury by the prosecuting attorney and by counsel for defendant. She could read and write, attended a public school, and was in the third grade, attended church and Sunday School, stated that she was sworn to tell the truth, and if she did not tell the truth she would be sent to the reform school, and at death would go to hell. The moral obligation upon her to tell the truth and the consequences for not doing so had been impressed upon her by her mother and her preacher. She exhibited sufficient intelligence and sufficient moral sense for her evidence to be admitted to the jury. The question of the competency of a child as a witness in any case is always addressed to the sound discretion of the judge, and, if it appears that a careful and full examination as to the age, intelligence, capacity, and moral accountability has been made by the judge and counsel before the jury, and the trial judge has concluded that she is competent, the appellate court will not reverse the ruling which permits the evidence to be introduced, unless it is apparent that it was flagrantly wrong. The demeanor, intelligence, and mentality are more apparent to the trial judge and the jury than to the appellate court, which does not have the witness before it, but simply a written lifeless record. State v. Driver, 88 W.Va. 479, 107 S.E. 189, 15 A. L. R. 917; Uthermohlen v. Bogg's Run Co., 50 W.Va. 457, 40 S.E. 410, 55 L. R. A. 911, 88 Am. St. Rep. 884; State v. Michael, 37 W.Va. 565, 16 S.E. 803, 19 L. R. A. 605. This point of error is not well taken.

The main point of error insisted upon by defendant is that the court refused to quash the panel of jurors. It appears that the term of the criminal court began on the 10th day of June 1923, and the venire facias for the petit jury for 70 jurors who had been drawn from the jury box was issued by the clerk of the criminal court on the 3d day of May, 1923, and directed the sheriff to summon the jurors to appear before the judge of the criminal court on the 14th day of June, 1923, to serve as petit jurors therein. The point of error is based on the assertion that the clerk had no power to issue the venire summoning the jurors to attend the court on the 4th day of the term, unless the judge or court had directed him so to do by an order entered of record; and it is stipulated that the judge did not enter such order of record, but that he gave to the clerk a verbal order in vacation, directing him to summon the jurors to appear on the fourth day of the term instead of the first day. The point of error is based on section 7 of chapter 116 of the Code which directs the clerk, among other things, to issue a venire facias for 30 jurors unless the court shall order a greater or less number, and, "such writ shall require the attendance of the jurors on the first day of the court or on such other day thereof as the court or judge may order." This section further provides that, if a lesser number of jurors than 30 will suffice for the convenient dispatch of the business, it shall be the duty of the court to enter such opinion of record expressing therein the number to be summoned, and then the venire facias shall not require a greater number to be summoned than that designated by the court, unless thereafter otherwise directed. Under this section the court, or judge in vacation, by written order entered of record at least 20 days before the term, may dispense with the jury and its services at that term. It is argued that, inasmuch as the section requires the court by written order to dispense with the services of the jury, or by written order to require the attendance of a less number than 30, and nothing is said in the section about a verbal or unrecorded order of the court or judge in such matters that the section should be construed to mean that the court or judge could only direct the jurors to be summoned at a day other than the first day of the term by recorded order. We do not think this point of error is well taken. Generally the statutes which direct the manner in which the jury panel shall be drawn and summoned are in most respects merely directory, but of course the material provisions of the statutes which are designed to secure a...

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