State v. Stafford

• Decision Date: 25 October 1921
• Docket Number: (No. 4265.)
• Citation: 109 S.E. 326
• Court: West Virginia Supreme Court
• Parties: STATE. v. STAFFORD.

109 S.E. 326

STATE.

v.STAFFORD.

(No. 4265.)

Supreme Court of Appeals of West Virginia.

Oct. 25, 1921.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Error to Circuit Court, Raleigh County.

Tony Stafford was convicted of attempting to kill by shooting, and he brings error. Affirmed.

C. M. Ward, of Beckley, and John M. Mc-Grath, of Princeton, for plaintiff in error.

E. T. England, Atty. Gen., R. Dennis Steed, Asst. Atty. Gen., and S. B. Avis, of Charleston, for the State.

LIVELY, J. Defendant prosecutes this writ of error from a judgment of the criminal court entered on the 6th day of April, 1920, sentencing him to confinement in the penitentiary for five years.

At the March term in 1919, defendant, George Lucas, Tom McGinnis, Dorr Snuffer, Tom Murphy, Ed Hornick, Will Owens, Tom Lethco, Tony Sorazzo, and Carl Crim were jointly indicted for a felony, the indictment charging them with unlawfully and feloniously attempting to maliciously, deliberately, and unlawfully kill John Ranson and others by shooting at them with guns on the 16th day of November, 1917. Some of the defendants demanded separate trials, and the state elected to try Tony Stafford.

In October, 1917, the E. E. White Coal Company had a controversy with some of its employees, at the Glen White mines, who were members of the United Mine Workersof America, and a strike resulted, the company's employees who were not members of the union remaining at work. The dispute was decided against the strikers by the United States mediators, and thereafter occurred the shooting for which defendant and the persons named above were indicted. The state's evidence was to the effect that Tony Stafford, who was an organizer of the United Mine Workers, suggested to Tom McGinnis, the secretary of the miners' local at Glen White, after the decision of the mediators had been rendered, that some radical means would have to be employed to win the strike; that Stafford later proposed that he furnish the guns and McGinnis the men to shoot at the nonunion miners when the cage, in which they were carried up the mine shaft at. the close of the day's work, appeared at the surface; that in pursuance of this arrangement Stafford did furnish a number of high-powered guns and ammunition; and that on the afternoon of November 16, 1917, defendant Stafford, together with Tom McGinnis, George Lucas, Dorr Snuffer, Carl Crim, Tom Murphy, Will Owens, and others, assembled on the mountain side, where the guns and ammunition had previously been hid, and lay in wait within shooting distance until the men at work came up in a cage; that from 50 to 300 shots from high-powered rifles were fired at a cage containing, among others, John Ranson, John Spears, and H. E. Nuckolls; the bullets striking all around the men, but hitting no one. Witnesses testified that Tony Stafford, defendant, was armed with a shotgun, and stationed about 300 yards behind the other men for the purpose of watching to prevent surprise and to give assistance if needed. There was no direct proof that he fired any shots, but witnesses stated that he was the only one armed with a shotgun and that buckshot had been fired, also that paper shells were found on the mountain side the day after the shooting. Tom McGinnis, Dorr Snuffer, George Lucas, and Carl Crim, as witnesses for the state, confessed their participation in the shooting, admitted that they shot at the men in the cage to kill them, and stated that such was the advice given to them by defendant, Stafford. They also testified as to Stafford's connection with the plans which resulted in the shooting. Stafford denied that he had anything to do with the arrangements leading up to the shooting, and testified that he was in the town of Beckley, about seven miles distant, when it occurred. Several witnesses for defendant testified that Stafford was seen by them in Beckley at different hours during the day of the shooting, and others stated that they did not see him at the meeting hall of the Glen White local union on that day.

Many assignments of error are made, but six only are urged, and to these we will confine our consideration.

On October 6, 1919, defendant filed two pleas in abatement to the indictment, averring that the grand jury which had found and returned the indictment had not been selected from a list of grand jurors prepared by the county court in the manner prescribed by law. The court, without objection or exception, proceeded to try the issue joined on these two pleas, and found in favor of the state. Error is assigned because the court so decided. The state objected to the filing of these pleas on the ground that they were tendered by defendant alone, and were not sworn to by him, but by one LawrenceDwyer, citing Rader v. Adamson, 37 W. Va. 582, 16 S. E. 808. It is not necessary to decide this contention, in view of the disposition we make of this assignment of error. Section 2, c. 157, Code 1918 (Code 1913, sec. 5538), directs that the county court shall at its levy term annually prepare a list of not less than 100 nor more than 150 freeholders, qualified to serve as grand jurors, and deliver the list so prepared to the clerk of the circuit court, from which grand jurors shall be drawn at the time and in the manner therein set out. Defendant alleged and sought to prove that the grand jury which found and returned the indictment was not selected from the list so prepared; that the county court did not prepare such list at its levy term; that, on the contrary, it prepared such list and delivered the same to the circuit clerk on September 4, 1918, at a special term of the county court. When is the levy term of the county court? This is the controlling question raised by these pleas. Section 1 of chapter 28A, Code 1918 (the chapter on tax levies [Code 1913, sec. 874]), requires the county court to hold a session on the second Tuesday in August in each year, then make up its budget and ascertain the total amount necessary to be raised by the levy for the current year, the assessed value of the property subject to taxation, and the rate of levy proposed on the property as a whole, and publish the statement in-two newspapers. The session shall then stand adjourned until the 4th Tuesday in August, at which time it shall convene, hear objections to the estimate and proposed levy, if any, and lay the levy. It appears that the court did meet, as required, on the 2d Tuesday in August, 1918; that it was in special session on August 21, when it called a special session to meet on the 27th day of August, 1918, for the purpose of transacting certain items of business named in the call, and, in pursuance thereof, did meet on the 27th and continued in session from day to day until the 4th of September, and during which time it laid the county levies, and on which last-named day it prepared a list of grand jurors, and delivered the same to the circuit clerk in strict accordance with section 2, c. 157, Code 1918. It is clear that the session directed to be held on the second Tuesday In August, with adjournment over until the fourth Tuesday in the same month, constitutes the levy term, within the meaning of the requirement that the list of grand jurors shall be prepared at the "levy term." The beginning of the levy term is on the second Tuesday in August, and by operation of law continues (with the adjournment) until such time after the fourth Tuesday as the business shall have been finished and the session closed. A list of jurors prepared and delivered on any day of this session so beginning and ending would be "at the levy term." It does not make any difference that a special term was called for "Monday, the 27th day of August" ("the 27th" is apparently an inadvertence); the court was in session on the day following, the fourth Tuesday, as required by statute, and considered and laid the county and district levies. Nor is it of importance that the purposes for which the special session was called to meet on Monday did not include the item of preparation of the grand jury list, nor that the call was improperly or properly posted. The court could not make the regularly adjourned session held on the fourth Tuesday (the 27th) a special session by naming it such; nor prevent it from being the levy session by giving it any other name. The statute governs in that.

Defendant's second assignment of error relates to the giving of the state's instruction No. 5, which is as follows:

"The court instructs the jury that if they believe from the evidence that on the 16th day of November, 1917, Tony Stafford, Carl Crim, Dorr Snuffer, Tom McGinnis, Tom Murphy, Tony Sorazzo, George Lucas, Will Owens, Ed Hornick, Tom Lethco, or either, or all, or any, of them armed with rifles, guns, and pistols loaded with powder and leaden and steel balls and bullets, did go within range and shooting distance of the tipple of the Glen White mines, in which was the cage that is used for bringing men up out of said mine, and the said Carl Crim, Dorr Snuffer, Tom Murphy, Tony Sorazzo, George Lucas, Will Owens, Ed Hornick, and Tom Lethco did then and there lie in wait until John Ranson and the other persons mentioned in the indictment in this case came up on said cage, and did then and there shoot at the said John Ranson and said other persons mentioned in the indictment, or either, or any, or all of them, with said rifles, guns, and pistols, loaded as aforesaid, with intent then and there to kill them, or either, or any, or all, of them; and if the jury believes from the evidence that the said Tony Stafford was then and there present or within about 300 yards of the said Carl Crim, Dorr Snuffer, Tom Murphy, Tony Sorazzo, George Lucas, Will Owens, Ed Hornick, and Tom Lethco, and watching to prevent surprise whilst said Carl Crim, Dorr Snuffer, Tom Murphy, Tony Sorazzo, George Lucas, Will Owens, Ed Hornick, and Tom Lethco were on the hillside committing said offense or with the intention of...