State v. Simmons

• Decision Date: 25 March 1947
• Docket Number: 9877.
• Citation: 42 S.E.2d 827,130 W.Va. 33
• Parties: STATE v. SIMMONS.
• Court: West Virginia Supreme Court

42 S.E.2d 827

130 W.Va. 33

STATE v. SIMMONS.

No. 9877.

Supreme Court of Appeals of West Virginia.

March 25, 1947

Rehearing Denied June 23, 1947.

Syllabus by the Court.

1. A trial court in ruling on a motion for a continuance is governed by a sound discretion, and, unless it clearly appears that such discretion was abused, and that movant was prejudiced thereby, denial of a continuance does not constitute reversible error.

2. On a motion for continuance on the ground of the absence of a material witness, it must be shown to the satisfaction of the court that due diligence has been exercised to procure the attendance of the absent witness that his testimony is material; that the same facts cannot be proved by any other witness; that movant cannot safely go to trial in the absence of such witness; and that there is a probability of obtaining the testimony of the absent witness by his attendance or deposition, if the case is continued. If an affidavit is required to be filed under Code, 56-6-7, such affidavit must set forth the foregoing matters as well as the name of the absent witness; the testimony he is expected to give; and, if required, affiant must submit to cross-examination in open court on the matters set forth in the affidavit.

3. Code, 61-2-10, defines one crime, and in a trial on an indictment charging violation of that statute only one of two verdicts may be returned; guilty or not guilty.

RILEY Judge, dissenting.

Wm T. George, Sr., of Philippi, for plaintiff in error.

Ira J. Partlow, Atty. Gen., Ralph M. Hiner and Eston B. Stephenson, Asst. Attys. Gen., and Don Cunningham, Pros. Atty., of Franklin, for defendant in error.

LOVINS Judge.

The defendant, Arlie C. Simmons, was granted a writ of error and supersedeas to the judgment of the Circuit Court of Pendleton County, sentencing him to serve an indeterminate term of two to ten years in the penitentiary, and to pay the costs of this prosecution.

At the March term of the Circuit Court of Pendleton County defendant was indicted by the grand jury of that county on two counts. The first count charges that defendant unlawfully, feloniously, and maliciously attempted to shoot and wound Allen Armstrong, with intent to maim, disfigure, disable and kill him, and in attempting to commit said felony, he shot and wounded Nina Taylor. The second count is similar, except that defendant is charged with attempting to shoot, stab, cut and wound the said Armstrong with intent to maim, disfigure, disable and kill him, and that in attempting to do so defendant, unlawfully and feloniously shot, stabbed, cut and wounded Nina Taylor.

Nina Taylor was shot and seriously wounded about ten o'clock on the night of October 6, 1945, while standing at or near a gate in front of her home. The shooting occurred along the east side of the public highway, designated as Route No. 28, which runs in a general north-south direction through the Town of Circleville in Pendleton County.

Defendant is the owner and operator of a cafe or restaurant situate at the southeast corner of the intersection of Route No. 28 with a highway referred to as the 'Old Franklin Road.' The first floor of the building is occupied by the restaurant, and the second floor is occupied by defendant and his family as a residence. Immediately south of and parallel to the restaurant building there is an alley approximately sixty feet in length, which extends from Route No. 28 in an easterly direction to the rear of defendant's building. South of the alley is a building used as a filling station and known as the 'old liquor store,' said building being located more distant from Route No. 28 than the restaurant building. The space immediately in front of the gasoline station is occupied by a concrete porch and some gasoline pumps, the exact location of the said pumps not being shown by the record other than that they were on a line with the front of the restaurant building. About fifty feet to the south of the restaurant building is a residence occupied by Nina Taylor. The entrance to the Taylor home from Route No. 28 is through a gate.

Between nine and nine-thirty on the night of October 6, 1945, Allen Armstrong, a brother-in-law of defendant, went to defendant's residence on the second floor of the restaurant building, accompanied by Nina Taylor's daughter. While there he and defendant engaged in a quarrel as the result of which defendant ordered Armstrong to leave his premises. Complying with defendant's order, Armstrong and his companion left the residence of defendant by a stairway at the rear of the restaurant which entered the eastern end of the alley above mentioned. They went by way of the alley to the highway and turned south toward the Taylor home. Defendant followed them as far as the western end of the alley near Route No. 28, where defendant stopped and continued the quarrel. When Armstrong reached a point on the east side of Route No. 28 opposite the gate leading to the Taylor home, John Armstrong, a brother of Allen, joined in the quarrel. Thereafter for a period variously estimated from ten to fifteen minutes, defendant and the Armstrongs engaged in a cursing bout. All the evidence introduced by the State and the defendant coincides up to this point. Thereafter there is a sharp conflict between the evidence introduced by the State and defendant. According to four witnesses testifying for the State, defendant left the scene of the quarrel and went back into the alley in the direction of the entrance to his apartment, and a short time later appeared in the western end of the alley near the front of the filling station with a gun and renewed the quarrel, threatening to kill the whole Armstrong family. State's witnesses also testified that defendant went into the shadows in the alley, raised the gun, apparently aimed at the two Armstrongs, who were then standing just outside the gate to the Taylor home, and fired the gun; that a flash came from the gun and the report thereof heard. Nina Taylor, then standing with her daughter near the inside of the gate, was struck in and about the abdomen and thighs by shots discharged from a shot gun. It is further shown by said witnesses that an automobile owned by Paul Simmons was parked immediately in front of the Taylor home on Route No. 28, and that an automobile owned by John Armstrong was double parked alongside the Simmons automobile. It is proper to note that at least two shots struck the Simmons car, one in the right headlight and the other in the radiator just to the right of the center thereof.

There is evidence that the headlights of John Armstrong's automobile were burning, illuminating the side and front of the restaurant building, and that visibility at that time and place was otherwise good. Contrary to this, defendant's witnesses testified that no automobile lights were burning at the time of the shooting; that the night was dark; and that it was impossible to see and recognize anyone in the vicinity of the gasoline filling station.

Defendant's version of the actual shooting, which is corroborated by several witnesses, is that as he followed Allen Armstrong through the alley and toward Route No. 28, he picked up a piece of firewood, which he carried to the intersection of the alley and Route No. 28; that he stopped there and continued the quarrel with the Armstrongs, who had gone down the street to the vicinity of the gate in front of the Taylor home. Defendant states that his quarrel with the Armstrongs was continuous until the shot was fired, and that when it was fired it came from a point about sixty feet to the rear of him and from the vicinity of the intersection of Route No. 28 with the 'Old Franklin Road.'

Defendant further testified that he was struck in the hand and knee by shot at the time the gun discharged, and that immediately after the shot was fired, he returned to the bed in his room where he remained until the following morning. Defendant's wife and his servant testified that blood was found on the linen of the bed in which he slept. It further appears that defendant owned only one shot gun, which had been lent a week earlier to Eddie Grogg, and that the gun was not returned to him until a week after the shooting. The evidence with reference to the loan of the gun is uncontradicted.

At this point it is well to say that we do not regard the efforts made by the State and the defendant to impeach the credibility of some of the opposing witnesses as being material.

On April 11, 1946, and before the trial, defendant filed an affidavit setting forth that on March 28, 1846, defendant had procured subpoenas for John and Allen Armstrong to appear and testify as witnesses in his behalf on April 8, 1946; that the subpoenas were not served; that defendant did not know the whereabouts of John Armstrong, but, upon information from the sheriff to whom process was given, stated that the parents of John Armstrong were unable to give him the address of the said Armstrong at that time. Defendant stated in his affidavit on his information and belief that Allen Armstrong was absent in the armed forces of the United States, and that he was 'reliably informed that the said Allen Armstrong will be discharged from the Armed Services on points within a very short time, probably within the next thirty days and that he can be obtained as a witness to testify in this case at the next term of Court, * * *.' Defendant further stated in his affidavit that the witness Allen Armstrong was material and necessary to his defense in that the witness would testify that defendant made him, Allen Armstrong 'leave the property and followed him down two flights of steps and out through an alley to the street * * *; that the altercation between said Armstrong...