State v. Sauls.

• Decision Date: 16 September 1924
• Docket Number: No. 5058.,5058.
• Court: West Virginia Supreme Court
• Parties: State v. Sauls.

97 W.Va. 184

State

v.Sauls.

No. 5058.

Supreme Court of Appeals of West Virginia.

Submitted May 13, 1924.

Decided September 16, 1924.

1. Former Case Followed.

A decision affirming points 3, 4, and 5 of the syllabus in the case of State v. Bertha Price 96 W. Va. 498. (p. 187).

(Juries, 35 C. J. §§ 237 [192G Anno] 421; Criminal Law, 17 C. J. § 3401 [1926 Anno]).

2. Homicide Shoiving Held Sufficient for Admission of Statement as Dying Declaration.

Where it is shown that deceased received mortal gunshot wounds inflicted by defendant, that he was advised by his physician that he had but a short time to live, that while conscious he declared that he was about to die, and requested that his wife be sent for, and that he desired to make a statement as to how the shooting occurred, and that he died within a few hours, such showing is a sufficient foundation for the admission of his statement as a dying declaration. (p. 188). (Homicide, 30 C. J. § 504).

3. Former Case Followed.

A decision affirming point 1 of the syllabus in State v. Sauls, 93 W. Va. 276, 116 S. E. 391. (p. 188).

(Homicide, 30 C., T. § 504).

4. Criminal Law Testimony at Former Trial of Unavailable Witness Held Admissible, Where Due Diligence Shown.

Where defendant has been once tried upon a criminal charge, and subsequent to such trial a witness who testified in defendant's behalf disappears through no fault of defendant, and, although diligently sought by defendant, cannot be found so as to testify at a later trial of defendant upon the same charge, the testimony of such witness given at the former trial is properly admissible. (p. 189).

(Criminal Law, 10 C. J. § 1557).

5. Same Failure to Locate Witness After Diligent Search Essential to Admission of Testimony at Former Trial; Issuance and Placing Subpoena in Hands of Officer Insufficient Proof of Diligence Rendering Testimony at Former Trial Admissible.

Such evidence is not admissible, however, unless it be shown that defendant has not been able to find the witness after diligent search; the mere issuance of subpoenas and placing them in the hands of the sheriff or other officer to be served, as shown in the instant case, is.insufficient proof of diligence in that behalf. (. 189).

(Criminal Law, 1G C. J. § 1557).

6. Witnesses Irrelevant Testimony of Accused on Cross-Examination, Bearing no Relation to Direct Examination, Not Subject to Impeachment or Contradiction.

Testimony of a defendant upon cross-examination, irrelevant and collateral to the issues involved, and bearing no relation to his evidence given on direct examination, is not subject to impeachment or contradiction by the state. (p. 194).

(Witnesses, 40 Cye, p. 2709).

7. Homicide Instruction That Homicide Presumed Murder in Second Degree Held Abstract and Too Comprehensive.

As a homicide may or may not be unlawful, an instruction in the trial of one for murder, which charges the jury that a homicide is presumed to be murder in the second degree, without referring to the particular circumstances of the instant case is abstract and too comprehensive, (p. 194). (Homicide, 30 C. J. § 051).

8. Same Instruction That Jury May Infer Malice, Intent to Kill,

and Willfulness, Omitting Circumstances Which Might Rebut Such Inferences, is Erroneous.

An instruction that the jury may infer malice, the intent to kill, and the willfulness from the unlawful use of a deadly weapon previously obtained, and which omits mention of any of the circumstances of the case which might, in the minds of the jurors, rebut such inferences, is erroneous. (p. 195).

(Homicide, 30 C. J. § 59SJ).

Note: 'Parenthetical references by Editors, C. '$. Cyc. Not part of syllabi.

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.

McOinnis, Maxwell & McGinnis, II. A. Dunn, C. L. Lilly, and A. P. Farley, for plaintiff in error.

E. T. England, Attorney General, and R. A. Blessing, Assistant Attorney General for the State.

Meredith, President:

John Sauls was convicted of murder in the second degree for the killing of B. F. Jones and was sentenced to serve eighteen years in the penitentiary, lie 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 tidal 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 AY. a. 276, 116 S. B. 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. Sauls informed 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 house. He was there about five 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 the 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 ease 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 empaneling 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 seventy.jurors to appear at the fourth day of the term, dune 14, 1923. The statute, sec. 7, ch. 116, Barnes' Code, 1923, directs the clerk, among other things, to issue a venire facias for thirty 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 thirty 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 in our opinion in the Price case, State v. Price, 96 W. Va. 498, 123 S. E. 283, 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 seventy 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 an issue of fact thereon; and the action of the court in disposing of the issue of law or...