State v. Sauls

• Decision Date: 06 March 1923
• Docket Number: (No. 4668.)
• Citation: 116 S.E. 391
• Court: West Virginia Supreme Court
• Parties: STATE . v. SAULS.

116 S.E. 391

STATE .

v.SAULS.

(No. 4668.)

Supreme Court of Appeals of West Virginia.

March 6, 1923.

(Syllabus by the Court.)

Error to Circuit Court, Raleigh County.

John Sauls was convicted of murder in the second degree, and he brings error. Reversed, verdict set aside, and new trial awarded.

H. A. Dunn, A. P. Farley, C. L. Lilly, and T. J. McGinnis, all of Beckley, for plaintiff in error.

E. T. England, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

MILLER, P. Upon an indictment charging him with the murder of E. F. Jones, in Raleigh County, the defendant was twice found guilty of murder in the second degree. In the first instance, the court, on motion of the defendant, set aside the Verdict and awarded him a new trial. In the last instance, however, the court refused to disturb the verdict of the jury, and, on April 3, 1922, entered the judgment complained of, that defendant be imprisoned in the state penitentiary for a period of five years.

In defendant's petition for the present writ his counsel have assigned numerous grounds of error, but in their brief and argument here only a few of them are relied on. We have examined them all, but will now confine ourselves to those relied on, as they are the only ones which seem to us to deserve serious consideration.

There is no controversy in the evidence as to the fact of the killing by defendant; and there is but little, if any, conflict in the evidence as to the immediate circumstances of the homicide. It occurred on the evening or night of November 12, 1921, in a barn, or shed attached thereto, located on the rear end of the lot on which the dwelling occupied by the defendant and his wife and two infant children was located, in the city of Beckley, Raleigh County, between eight and nine o'clock.

On the trial, the State had one theory, the defendant another, for the commission of the crime. The theory of the State was that the motive of the defendant, and of his wife for the part she played in the tragedy, was to rob the deceased. The defendant's theory was that the deceased had come to his home for the purpose of robbing him, not of his money, but of the virtue of his wife, between whom and deceased there had been rumors, at least, of Improper relations, but not known to him. The facts on which the witnesses agree are that the deceased came to the home of the defendant on the night of the killing between seven and eight o'clock, and after remaining there a short time defendant left his house and went to the barn or shed where shortly afterwards the homicide took place. Defendant says he had started to town, on his wife's representation that Judge McGinnis, a lawyer in charge of some litigation for him, wanted to see him, and being pressed by nature, that he went by way of the barn where there was a closet or toilet, to answer that call; that he had been there but a few minutes when the deceased entered the door and stood in the door way, apparently arranging his clothes or person and looking back towards the house; that his wife then appeared and entered the same door, and was embraced and kissed by deceased, who began to pull up her clothes In the act of sexual intercourse, when defendant called to him and inquired: "What the hell does this mean!" and being first shot at by deceased, he then fired three shots, two of which took effect.one in the arm of deceased, the other in his left side, over the seventh rib in the posterior axillary line, as described by the attending surgeon. Defendant's contention was that he had inflicted these wounds, one of which proved fatal, in the heat of blood, and under the great provocation which then confronted him, and also in self defense, it being shown that deceased was also armed; and defendant and his wife both testify that deceased fired the first shot.

Defendant's wife testified that deceased had come to her home pursuant to a previous appointment between her and him by notes exchanged the day before and on the same day, and that she followed him to the barn after her husband had left the house, pursuant to that appointment, not knowing that her husband had gone to the barn; and she corroborates him as to what occurred before and when they met on the scene of the tragedy.

The State undertook to sustain its theory of robbery, first, by the dying declaration of the deceased, second, by evidence that deceased was called to come to defendant's home, as one of the witnesses says by his wife, as another says by defendant himself; that defendant represented he wanted to pay his grocery bill, and that the deceased went there to collect the bill; that on the afternoon or the evening before the homicide defendant had been seen in the store and warehouse of deceased talking to him and probably paying him some money which he had collected for him; that just before leaving his store, a clerk of the deceased swore, he had seen deceased with a large pocketbook, and one witness said he had seen him with a large roll of bank bills, and another of the State's witnesses, a truck driver of the deceased, swore that the deceased left the store with him on the truck on the way to defendant's house, and that he alighted at a street corner not far from there, and that between the time they left the store on the truck and the time deceased left him, the latter did not handle his pocketbook or exhibit any roll of bills; and it was shown by the police officer who visited the scene of the tragedy and arrested defendant that deceased did not have on his person, when found at the barn and afterwards removed to a hospital, any pocketbook or any money except a small amount of change. This evidence of the State relating to the pocketbook was excluded by the court, but the evidence relating to the roll of bills and the dying declaration of the deceased were allowed to remain in the record, to support the State's theory of robbery as the motive for the homicide.

The first of the alleged errors relied on for reversal is the admission, over objection, of the evidence of the witness Hern, a customer, that he had seen deceased have a roll of greenbacks, which he judged was as large as his arm. It is said of this testimony that it was very indefinite as to; the amount of money, for if the bills were one dollar bills, it might have amounted to very little money, whereas if the bills were large ones, the sum would have been greater, and that therefore the testimony was misleading. We do not think the jury could have been misled by the supposed indefinite character of the testimony. They were competent to take into consideration the character of the evidence and to give it such, and only such, weight as it was entitled to. The money, if it had existed in fact, was gone, somewhere. No witness was produced or perhaps able to say where, but the evidence tended, in some degree at least, to support the theory of the State, that shortly before the deceased left his store he had some money on his person, which was not accounted for, by the evidence of the State at least. And as to the evidence of the witness Joines, deceased's clerk, it tended to show that before deceased left his store he had some money on his person paid him by customers that day, and that if he had, he left the store that evening with the money on his person. The criticism is that the witness should have related the circumstances which led him to believe that Jones had the money when he left the store, and not merely given his own conclusion as to the fact, the fact being one for the jury. We think the witness did relate all the facts and circumstances which were likely within his knowledge; besides, he was subject to cross examination by defendant's counsel, and was fully cross examined. His evidence, we think, was admissible on the State's theory; its weight of course was for the jury to...