State v. Sauls

Citation124 S.E. 670
Decision Date16 September 1924
Docket Number(No. 5058.)
PartiesSTATE . v. SAULS.
CourtSupreme Court of West Virginia

(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, and new trial awarded.

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

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

MEREDITH, P. John Sauls was convicted of murder in the second degree for the killing of E. F. Jones, and was sentenced to serve 18 years in the penitentiary. He seeks a reversal of that judgment. The verdict complained of is the third to be returned against defendant for the offense charged. The first, upon motion, was set aside by the trial court, and a new trial was awarded. The second was sustained by the trial court, but was set aside by this court by decision rendered March 6, 1923, and a new trial was again directed. We recited the principal circumstances of the homicide in the opinion then written. State v. Sauls, 93 W. Va. 276, 116 S. E. 391, and the present record discloses few material changes. Then, as now, defendant claimed that, having suddenly discovered his wife and Jones about to engage in sexual intercourse, he inflicted the fatal wounds under the provocation induced by the situation; and also, that deceased having fired the first shot, defendant's action was in self-defense.

The theory of the state in the former case was that the true motive of defendant and his wife was robbery. It sought by its evidence to show that deceased was inveigled by defendant and his wife into the circumstances which resulted in his death.

Repeating briefly a part of the facts stated in the former opinion, deceased, either upon defendant's invitation or upon his own volition, called at defendant's residence about 7:00 p. m. on the evening of November 12, 1921. Defendant, his wife, and children were there. Both men partook of some moonshine liquor, apparently furnished by deceased, and after a' few minutes Mrs. Saulsinformed defendant that his lawyer, Judge T. J. McGinnis, desired to see him. Defendant left the house, but stopped at a toilet situate in a barn on his premises a short distance from the bouse. He was there about 5 minutes when he saw deceased approaching, and he decided to watch unobserved what deceased was about. Mrs. Sauls followed shortly after, and, according to the testimony of the defense, was about to engage in intercourse with Jones, when defendant halted the proceedings, and, having been shot at by deceased, fired three shots into Jones' body. Mrs. Sauls fled, and Jones died shortly after.

A theory of the state, perhaps not relied upon at the former trial, is that defendant had heard reports of his wife's improper relations with Jones, and that his stopping and hiding in the barn was for the purpose of entrapping deceased in his illicit enterprise. If the jury's verdict was reached under proper and sufficient evidence and instructions, it would, of course, be decisive. The question for us is whether it was so arrived at. We will consider certain of the assignments of error in order.

1. The first error urged is that the verdict was not warranted by the evidence, and should therefore have been set aside. Defendant argues this point with an eloquent plea that homes be made secure from the violations of seducers, and a defense of him, who, maddened by such unexpected invasion, takes the life of the intruder. However just the principle invoked may be, it suffices for us to say that the evidence upon the conflicting theories presented in this case could only be properly weighed by a qualified jury, and that their judgment has been unfavorable to the accused. If in so deciding defendant had not been prejudiced either by the court's ruling upon the admission or rejection of evidence or by instruction, we could do nothing else but dismiss at once his objection to the jury's decision.

2. The second objection goes to the impaneling of the jury. Prior to the introduction of evidence on the merits of the case counsel for defendant moved to quash the jury panel, and upon that motion the court heard the testimony of the clerk of the criminal court and the sheriff, and examined the writ of venire facias summoning the petit jurors selected to serve at the particular term. It appears that there was no written order of the court authorizing the summoning of the panel, but under verbal agreement with the court and the prosecuting attorney the clerk, on May 3, 1923, issued the writ calling for 70 jurors to appear at the fourth day of the term, June 14. 1923. The statute, section 7. chapter 116. Barnes' Code. 1923, 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." The point of error, based thereon, is that in the absence of a court order the clerk was without authority either to order a greater or less number than 30 jurors, or to summon them to appear at any other day than the first day of the term. Happily, this precise question has been decided. At the same term of the same court and by the same panel of jurors Bertha Price was convicted of second degree murder, and her conviction was reviewed by this court. The identical objections were raised by some of the same counsel who represent defendant Sauls. For reasons which fully appear in our opinion in the Price Case (State v. Price [W. Va.] 123 S. E. 2S3), we held the objections raised insufficient.

As was also true in that case it is objected that the certificate of the jury commissioners shows that the panel of 70 was drawn from the petit jury box of the circuit court instead of the criminal court, but, since in neither case was this objection assigned as a ground for quashing the panel before the trial judge, the point avails nothing now.

"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." State v. Price, 123 S. E. 283, supra, Syl. pt. 4.

3. Defendant assails as objectionable the testimony of Dr. Robert Wriston in which be detailed a purported dying declaration of deceased. The doctor did not reduce the declarant's statements to writing, but testified to them from memory alone. The declaration as given in this record is in all substantial respects the same as testified to in the former trial, and an equally sufficient foundation therefor is bud. Joe Williams, who was present and heard deceased make his statement to the doctor, and who testified concerning the same in the prior trial, was not a witness in the present record, but, as the doctor testified fully as to deceased's condition and anticipation of immediate death, the same reasoning which we employed before applies here. The objection that no sufficient foundation for a dying declaration was laid cannot be sustained.

4. It is objected that the court erred in admitting the testimony of E. C. Hern. An issue of fact in the case is whether or not money was taken from deceased by defendant after the shooting. On this question several witnesses were called, and there was testimony that money had been paid to deceased at his store prior to the homicide, and in defense it was sought to be shown that be made a bank deposit between 6 and 7 p. m. Hern tosti-fied that about that time he paid deceased a grocery bill, and saw $40 and a roll of "greenbacks" in deceased's possession. Testimony similar in character was introduced at the prior trial, but defendant then was not permitted to produce evidence relative to the bank deposit. That error was corrected in this record, and we see no merit in defendant's objection on this score. Defendant says the evidence was improperly offered as rebuttal testimony. This is not true. Counsel for the state, before resting their case, stated that Hern had not arrived, and Mr. Dunn, of defense counsel, expressly agreed that he could be heard later.

5. In the former trial Charley Sanders testified for the defense. He was not present to testify in this record, and counsel for defense offered as evidence the record of his former testimony. It was not offered on the ground that the witness was dead, insane, or out of the state, but that he could not be found. We confess a degree of surprise in finding that there has been some uncertainty about the competency of testimony of this character, especially in the Virginias. So far as deceased witnesses in civil eases are concerned, the law seems settled that their former testimony is proper. Patterson v. Coal Co., 87 W. Va. 177. 104 S. E. 491; Carrico v. West Virginia Central Ry. Co., 39 W. Va. SO, 19 S. E. 571, 24 L. R. A. 50. The opinion in the latter case contains some expressions as to criminal cases also. The Supreme Court of Virginia distinctly holds that in criminal cases, where a witness who formerly testified for the prisoner is dead, the record of such evidence is admissible.

"If a witness for the prisoner in a criminal prosecution has been examined and cross-examined at one trial, and dies before a second trial of the case, his testimony given on the first trial may be proved by the prisoner on the second trial." Parks v. Commonwealth, 109 Va. 807, 63 S. E. 402.

Judge Phlegar of that court was apparently at one time disposed to hold oppositely, and so stated his views in the copy of his opinion in Montgomery v. Commonwealth, appearing in 37 S. E. 841, and 6 Va. Law Reg. 702, but the portion of the opinion so holding...

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    • Supreme Court of West Virginia
    • December 12, 1990
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