State v.Shawn.

• Decision Date: 24 November 1894
• Citation: 40 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: State v. Shawn.

40 W.Va. 1

State

v. Shawn.

Supreme Court of Appeals of West Virginia.

Submitted June 23, 1894

Decided November 24, 1894.

1. Argument of Counsel Criminal Law.

Counsel necessarily must be allowed considerable latitude in the argument of a case, and, unless the court in a felony trial permits counsel for the state to so far transgress the rule of propriety as clearly to prejudice the prisoner, the judgment will not bereversed because of improper remarks by counsel made to the jury in argument.

2. Argument of Counsel Remarks of Counsel.

Where a criminal trial is in other respects fair, a verdict of conviction will not be set aside by this Court for improper remarks of counsel, where it is plainly warranted by the evidence in the case under the law, and no other verdict could have been found without misconduct by the jury.

Monroe & Woods for plaintiff'in error, cited 20 W. Va. 32, 714; 34 Am. Rep. 751; 58 Am. Rep. 647 and notes; 56 Am. Rep. 812; 48 Am. Rep. 336; 1 Am. St. Rep. 554; 5 Am. St. Rep. 882; 9 Am. St. Rep. 547; 11 Am. St. Rep. 512; 13 Am. St. Rep. 607; 19 Am. St. Rep. 310; 22 Am. St. Rep. 465, 673; 35 Am. St Rep. 150; 27 Am. St. Rep. 103, 327.

Attorney-General T. S. Riley for theState, cited 31 W. Va. 493; 5 Am. St. Rep. 882.

W. B. Cornwell for the State, cited Abbott's Trial Brief, 712 and authorities there cited.

Brannon, President:

On the 30th day of September, 1893, Daniel Shawn was by the Circuit Court of Hampshire county sentenced to be hanged for the murder of Absalom Izer.

Daniel Shawn and Absalom Izer were brothers-in-law, having married sisters. They lived in McDowell's Hollow, about four miles south of the town of Romney, and about three fourths of a mile east of the river road. Their houses were about two hundred yards apart. They were engaged in getting out and hauling tan bark together, each man having for this purpose a team of two horses and a wagon. To get to their place from Romney, it is necessary to pass through the tollgate about a mile and a quarter from the town, and, keeping the river road for two or three miles, to turn to the left through a gate known as "McDowell's" gate, into the said McDowell's Hollow. From the said gate the road leads through the woods through the said hollow for about three-fourths of a mile, to the houses of said Shawn and Izer. Izer was a larger and stronger man than Shawn. On the 23d day of June, 1893. both men were in Romney, with their horses and wagons and their wives, Izer having also his son, and taking out with him in his wagon several friends. They had both been drinking during the day. Shawn needed another horse. A certain Abel High, having a horse to sell, was in town on the aforesaid 23d day of June, and was told by one Joseph A. Pancake that Shawn wanted to buy a horse, wdiereupon the said Pancake and High went to hunt for Shawm. They found him standing with Izer in front of the courthouse. High and Shawn then began to ar- range the terms upon which the horse should be sold. Shawn stated that he would like to have six months in whch to pay for it; whereupon Izer interfered, and told Shawn that he should not have but till December; that he must have his (Izer's) bark hauled in by that time. Shawn replied that, by the terms of his contract with Izer, he had till the 1st of the next June to haul in said bark. Pancake advised them to go home and cool off, upon which Izer told him to shut his mouth, or he would slap it for him. To this Shawm made no reply whatever, but turned and left in a peaceable manner. Soon after, he left town in his wagon, with his wife. A witness, one Harmison, testified that on the day aforesaid, he was out in his stable, and heard loud talking and swearing. He looked out of the stable door, and saw Shawn driving furiously out of town, and heard him say, with an oath, "Some people can have anything they want, but I can't have anything." The witness heard Shawn's wife remind him that he was still within the corporation. Shawn replied that he would fix him at the toll gate. Shawn was beating his horse, and swearing.. Witness heard prisoner mention no names, and could not say whether he referred to Izer or not. Witness was about two hundred yards from the prisoner. Shawn testified that he was exasperated at one of his horses at the time Harmison sawT him, and that he was bearing it, and swearing at it, and did not have a thought in reference to Izer at that time. When the prisoner got to the aforesaid McDowell's gate, he unhitched his horses, and left his wagon there, as was his custom; took the horses on up the hol]ow, and put them away. He then went into the house, tool; down his gun, and told his wile and mother that he was going to see Joe Pancake, and give him back his horse (which he had bought from him some time before, and had not paid for) and gears; that he was tired of this place; that he could not live here in peace; and that he was going some place where he could live in peace. He then went on down the hollow, and was next seen on the river road, at the aforesaid McDowell's gate. It was a habit of the prisoner to take his gun with him when walking alone. Just before the shooting, one James P. Stump passed Shawn sitting on the roadside at the aforesaid gate. Witness asked the prisoner what he was waiting for, and prisoner answered that he was waiting to see Joe A. Pancake. Said Pancake had to pass along the river road to get to his home, from Romney. About five minutes after the witness Stump passed, Izer drove up in his wagon with his wife, little son, and several friends. His nephew was riding one of the horses, and driving. When Shawn saw Izer, he rose up, and said: "Aps Izer, what in the hell are you always putting your mouth in my business for?" Izer replied, "I haven't, Dan." Shawm then proceeded to swear some more, and make threats. Mrs. Izer testified that she got out of the wagon, and caught hold of the prisoner, and told him that his gun was scaring her son into spasms, and he answered that the gun would do no harm. She further entreated him for her sake, if not for "Aps'," not to shoot. The prisoner answered again that the gun would do no harm, and he pointed it to the ground. Izer told the boy to drive on. After a few more angry words addressed to Izer, he (Shawn) kneeled on one knee, and shot just as the wagon was going through the gate. Izer fell out of the wagon, upon the side of the road, dead. Shawn threw his gun down, almost striking Izer in the face, and said, "There's the damned old gun;" then, turning to Izer's wife, said, "Now, you can hang me, or do what you please with me;" after which he ran. Shawn himself testified that the above, as told by the witnesses for the state, was in the main correct, but that he was leaving the wagon when Izer, swearing at him, attempted to get out of the wagon, threatening to whip him, saying, "God damn you, son of a bitch, if I get out, I will fix you," when he shot. He also denied getting on one knee to shoot. Shawn had been sitting on the right side of the road, and Izer was on the right side of the wagon, during the quarrel at the said McDowell's gate. The shot took effect in the right side of the head, behind the ear, and in the right shoulder, rather behind. Some of the shot: penetrated the brain, and caused death. Dr. Berkley, who held the post mortem examination, testified that Izer, in his opinion, had his back to prisoner, and was looking back at him. In the morning, Shawn came to town, and gave himself up. There was no evidence produced on the trial as to the previous reputation of either Izer or Shawn.

The prisoner's motion for a new trial, because the verdict.finding him guilty of murder in the first degree was not warranted by the evidence, must be overruled; for that verdict is fully and decidedly sustained by the facts.

But the chief ground on which the prisoner's counsel asks relief from his client's death sentence is on account of certain improper remarks by the prosecuting attorney in his closing argument before the jury. When the prosecuting attorney had finished his opening argument to the jury, in which he asked them to find an unqualified verdict of murder of the first degree, so that the penalty of death should be inflicted upon the prisoner, the counsel for the prisoner, admitting in their arguments that the evidence warranted a verdict of murder in the second degree, argued against the infliction of the death penalty, as asked for by the prosecuting attorney, and in favor of the alternative punishment of confinement for life in the state penitentiary. After the counsel for the prisoner had concluded their arguments to the jury, and when the prosecuting attorney was closing the argument for the state, having demanded in his argument an "unqualified verdict of murder in the first degree," or "the death penalty," he proceeded to argue against the alternative penalty of a life sentence in the penitentiary, because of the assumed fact that the prisoner, if sentenced to life imprisonment, would be liberated in a few years, and in this connection called the attention of the jury to the anarchists of Chicago and the action of the governor of Illinois, to which the prisoner, by his counsel, objected; and the court "suggested that the attorney was perhaps going too far away for examples," but gave the jury no instructions in reference thereto. Proceeding, he said: "If you sentence him to the penitentiary for life, it won't be five years till he will be let out on some excuse or pretext, and return home, to enter upon a new course of crime." He further said: "This (meaning the homicide for which the prisoner was on trial) is the grand culmination of an epidemic of crimes that have been committed in this county." He further said, referring to the prisoner: "He is so steeped in crime that he has no friend to sit beside him during the trial."

There have been very many decisions in different states as to when improper remarks by counsel in...