State v. Sheppard.

Decision Date07 September 1901
PartiesState v. Sheppard.
CourtWest Virginia Supreme Court

1.Indictment Sufficiency in Murder.

An indictment in the form, prescribed in section 1 of chapter 144 of the Code, is sufficient to support a conviction of murder in the first degree, (p. 592).

2.Venue Change of Burden.

The burden of proof is on the prisoner to show, to the satisfaction of the court, good cause to have the trial of the case removed to a county other than that in which the crime was committed, and such cause must exist at the time the application for the change of venue is made. (p. 592).

3.Change of Venue Facts Necessary.

In order that a change of venue may be had, facts and circumstances must be shown, from which the conclusion that a fair and impartial trial cannot be had is fairly deducible; and the court must be satisfied from those facts and circumstances, and not from conclusions or opinions of the defendant or his witnesses, that such trial cannot be had. (p. 593).

4.Crime Mob Violence Venue.

Where it appears from the petition and affidavits that, immediately after the commission of the crime, there were rumors and talk of mob violence against the prisoner, but such rumors and talk were confined to the inhabitants of a small portion of the county, and there had been some excitement and prejudice and feeling against the prisoner immediately after the perpetration of the crime, but, at the time of the trial, there is no longer talk of such violence and the excitement, prejudice and feeling have greatly subsided and no trouble is found in obtaining a jury free from exception, the court may properly overrule a motion for a change of venue, (p. 594).

5. Murder Evidence Res Gestae Trial.

Upon the trial of a person, charged with murder, evidence of acts and conversations of the accused, prior to the homicide, though not shown to be a part of the res gestae, is admissible when such facts legitimately tend to establish motive or intention on the part of the defendant to commit the crime with which he is charged; but such evidence is admissible for that purpose only. Such evidence is not limited to the time or place of the homicide, but will include all such acts and declarations, of any date prior to the homicide and at any place, as will serve to cast light upon the question whether the accused committed the homicide, (p. 595).

6. Trial Wife Murder Evidence.

In such case, it is proper to show, against a prisoner, charged with having murdered his wife, that the deceased had some property, tnat they had been married but a short time, that he had stated prior to the marrage that if she disposed of her property ne would not have her, that he had been displeased after the marriage because of her useless expenditure of money, that he had used language after the marriage, importing that her property was one of the inducements to the marriage, and that he had stated before the homicide that he intended to get shut of her child, and, if he could not do that, he would get shut of both of them, it being shown that the child was murdered at the same time; for the purpose of showing a motive for, and an intention to commit the crime, and how much weight such facts and circumstances, taken in connection with all the other evidence in the case, are entitled to is for the determination of a fair and impartial jury, duly impressed with a sense of their responsibilities and duties. (p. 597).

7. Homicide-Declarations of Prisoner.

In such case, it is competent to prove any actions and declarations of the prisoner, subsequent to the homicide, tending to show a lack of concern at the death of the deceased or indifference as to her fate, although such acts and declarations would not be admissible as a part of the res gestae, because too remote, (p. 599).

8. Prisoner Voluntary Acts Evidence.

Anything voluntarily done or said by one charged with crime, which in any way or to any extent tends to show his guilt, is competent evidence and should go to the jury, and, of its weight the jury alone can judge, (p. 600).

9. "Witness Examination Preliminary.

It is proper to ask a witness, as a preliminary question, if he was a member of the coroner's jury upon the inquest held over the dead body of the child, in such case, and where the jury sat. (p. 601).

10. Prisoner Charged With Previous Homicide Evidence.

Where the prisoner, on a former occasion, has been charged with having murdered a person, other than the one for the killing of whom he is on trial, and such former homicide is in no way connected with the other, and the prisoner has been acquitted of such former charge, it is improper for the attorney for the State, in cross-examining a witness, to propound questions or make remarks, relating in any way to the prisoner's connection with such former homicide, he not having put his character in issue, (p. 598).

11. Prisoner Cross Examination-Evidence.

Upon the cross-examination of the prisoner as a witness in his own behalf the grounds may be laid for the purpose of contradicting him as to any material matter, although evidence in chief of such material matter was not introduced, but this can be done for no purpose other than to impeach his credit as a witness, (p. 602). *

12. Testimony Order of Trial Court.

The order of introducing testimony is in the sound discretion of the trial court, and it is not error to permit the introduction of evidence out of its regular order, unless it appears that the prisoner was, or may have been, prejudiced thereby, (p. 604).

13. Evidence Rebuttal.

Where witnesses for the defense have testified, in chief or on cross-examination, as to material matters, and the grounds have been laid for contradicting them, witnesses may be called to testify in rebuttal for the purpose of such contradiction, (p. 605).

14. Evidence Must be Material,.

Whether a matter is material or collateral, as regards the impeachment of witnesses, depends upon whether the cross-examining party is entitled to prove it in support of his case, (p. 606).

15. Evidence Proper Material.

It is competent to prove against a person charged with murder, that, while confined in jail, in reply to the question of a stranger, concerning the murder, he said "I could tell you the time and all about it, but they told me not to say anything about it;" it is for the jury to determine what the language means and how much weight shall be given to it. (p. 607).

16. Voluntary Declarations Relevancy.

While voluntary declarations or extra-judicial admissions of one charged with homicide, concerning its commission, are admissible in evidence against him, evidence of declarations, which he denies having made, and which are not shown to have relaled to the homicide or to the deceased, although, if made, they may have related to it or to the deceased, are not admissible against him. (p. 598).

17.Instructions "Presumed" Necessary.

Point 11 of the syllabus in Gain's Case, 20 W. Va. 679, is a part of the settled criminal law of this State, and it is deemed an unwise and unnecessary innovation to so alter the language there used "A man is presumed to intend," etc. as to make it read, in an instruction to the jury, "A man intends," etc. (p. 608).

18.Instruction Must Refer to Evidence.

It is essential to maintain the distinction between juridical and moral truth, and it is error to give an instruction in which there is no reference to the evidence in the case. (p. 609). 19.Circumstantial Evidence Sufficient to Convict.

A person charged with crime may be convicted on circumstantial evidence alone, if the jury believe from such evidence, to a moral certainty and beyond a reasonable doubt, that the defendant is guilty of the crime alleged against him; and the jury may be properly so instructed and that they have the right to convict upon such evidence in a case in which the evidence is circumstantial, if, from it, they so believe the defendant is guilty, and, further, that such evidence is not only competent but is sometimes the only mode of proof in criminal cases, (p. 610).

20.Instruction in Murder Reasonable Doubt.

In a trial upon an indictment for murder it is error to give the following instruction: "The court instructs the jury that reasonable doubt to warrant acquittal in criminal cases is not mere possible doubt, but is such doubt as, after mature comparison and consideration of all the evidence, leaves the minds of the jurors in such condition that they cannot say they feel an abiding conviction of the truth of the charge, or for which reason can be given:" it being uncertain whether the clause, "for which reason can be given," qualifies the word "doubt" or the word "conviction." (p. 610).

21.Instructions Embodied in Others.

It is not error to refuse to give an instruction, enunciating propositions of law which are fully and specifically set forth in other instructions given in the same case. (p. 610). Felony Trial Prisoner Must be Present.

In a case of felony, it is reversible error to proceed with the examination of a witness, in the absence of the prisoner, although the questions propounded and answered, in his absence, are preliminary questions, and, upon the return of the prisoner, the same questions are re-asked and re-answered in exactly the same way, and no exception is taken on the grounds of such irregularity at the time, for, to be present at all stages of the trial, is a constitutional right of the prisoner which he cannot waive and of which he cannot be deprived, and such error cannot be cured, (p. 611).

Error to Circuit Court, Wirt County.

Samuel Sheppard was convicted of murder, and brings error.


T. A. Brown, d. C. Casto, D. h Leonard and W. W. Arnett, for plaintiff in error.

Atty. Gen. E. II. Freer, Alex Dulin and F. C. Copen, for the State.

poefenbarger, judge:

On the 16th day of November, 1900, Samuel Sheppard was convicted in the circuit court of Wirt County of one of the foulest and most brutal murders recorded in the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT