State v. Putman, 13258
| Decision Date | 18 June 1974 |
| Docket Number | No. 13258,13258 |
| Citation | 205 S.E.2d 815,157 W.Va. 899 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Edna C. PUTNAM. |
Syllabus by the Court
In a homicide case a jury verdict will not be reversed for the failure to give a proper instruction concerning malice which would apply to first and second degree murder under an indictment for first degree murder when the verdict returned is for voluntary manslaughter to which the refused instruction would not have applied, nor will a jury verdict in a criminal case be reversed for the admission of improper testimony when it clearly appears that if such evidence had been excluded the result would not have been changed.
Goodwin, Goodwin, Bryan & Lobert, Stephen P. Goodwin, Charleston, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Betty L. Caplan, Asst. Atty. Gen., Charleston, for defendant in error.
This is an appeal from a final order of the Circuit Court of Jackson County entered upon a jury verdict which found the defendant guilty of the crime of voluntary manslaughter. The evidence indicates that on August 4, 1971, the defendant, Edna C. Putnam, shot her husband, Harry S. Putnam, at their home in a rural section of Jackson County.
The evidence is uncontroverted that the deceased, when drinking, often physically abused the defendant, and that four days before the shooting, the deceased, under the influence of liquor, so severely beat the defendant that she required hospitalization.
There were no eye witnesses to the incidents which led to the shooting. Delano McDougal, the defendant's son-in-law, however, was on the premises at the time and heard the deceased and the defendant quarreling. McDougal was unaware of the substance of the argument, and observed nothing until immediately before the shooting when he heard a door slam, and then witnessed the defendant shoot the deceased who was sitting on a couch on the front porch. McDougal was unable to testify whether the deceased was approaching the defendant in a threatening manner, but he did testify that after the first shot, and through three successive shots, the deceased was crawling toward the defendant. At trial the defendant relied entirely on self-defense.
The defendant testified that at the time of the shooting she was recovering from the deceased's beating of the previous Sunday, and had spent Monday and Tuesday nights in an outbuilding to avoid further abuse from the deceased. She testified that immediately before the shooting she and the deceased began to quarrel through a window of the trailer. The defendant testified that the deceased threatened to 'wring her neck' and started to get up, whereupon the defendant picked up a pistol and shot him. The pistol which the defendant used was kept in the kitchen for the purpose of killing rodents and other vermin, and was generally available to any member of the household.
The defendant argues five principal errors which will be considered sequentially. The first assignment of error is that the trial court erred by re-reading an instruction concerning the various verdicts which may be returned under a first degree murder indictment. The second reading was in response to a juror's question. When defense counsel objected to the court's having read this instruction a second time, the court offered to read all of the instructions again, but defense counsel did not accept the offer. As the court gave the defendant the opportunity to have all of the other instructions read a second time, we hold that any error was cured.
Defendant maintains that the court erred in giving the following instruction:
'The Court instructs the jury that the rule of law is that a woman is presumed to intend that which she does or which is the necessary consequence of her act.'
The Court sees no error in this instruction, as similar instructions have been approved numerous times in this State. State v. Hertzog, 55 W.Va. 74, 46 S.E. 792 (1904); State v. Taylor, 57 W.Va. 228, 50 S.E. 247 (1905); State v. Kellison, 56 W.Va. 690, 47 S.E. 166 (1904). This is old and good law as far as it goes, and the facts of this case do not require any qualifications, as the issue of self-defense was adequately covered in other instructions.
The defendant's third assignment of error is the refusal of the trial court to give defendant's instruction No. 15, which said:
'The Court instructs the jury that where one is attacked by another in such a manner or under such circumstances as to furnish reasonable grounds for apprehending a design to take away his life, or to do him some great bodily harm, and there is (sic) reasonable grounds for believing the danger imminent that such design will be accomplished, and the person assaulted (sic) has reasonable grounds to believe and does believe such danger imminent, he may act upon such appearances, and without retreating kill his assailant, if he has reasonable grounds to believe, and does believe that such killing is necessary to avoid the apparent danger; and the killing under such circumstances, is excusable, although it may afterwards turn out that the appearances were...
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