State v. Staley.

• Decision Date: 10 December 1898
• Parties: State v. Staley.
• Court: West Virginia Supreme Court

45 W.Va. 792

State

v.Staley.

Supreme Court of Appeals of West Virginia.

Submitted Dec. 10, 1898. Decided Jan. 20, 1899.

1. Verdict Homicide Form of Verdict.

" We, the jury, agree and find the defendant, Virgil Staley, not guilty of murder in the first or second degree, as charged in the within indictment, but do agree and find the defendant, Virgil Staley, guilty of voluntary manslaughter," is a verdict sufficient in form (p 794).

2. Couwt House Place of Holding Court.

When the place of holding the courts of any county has been changed to another building in the same town temporarily, under section 7, chapter 114, Code, for the reason that the court house has been destroyed, no formal ceremony or notice is necessary to authorize the holding of courts in the new court house provided upon the site of the old one, when the same is ready for occupancy and in possession of the county authorities. (p. 795).

3. Court House Place of Holding Court.

Whenever such new court house is ready for occupancy, the reason for holding the court at such other place appointed has ceased, and the courts are properly held in the new court house. (p. 795).

4. Instructions Error.

Point 4, Syl., in State v. Bingham, 42 W, Va. 234, approved. (p. 799).

5. Evidence Conflict of Evidence Jury.

Point 5, Syl., in State v. Zeigler, 40 W. Va. 594, disapproved and overruled. (p. 800).

6. Evidknce Witness Impeachment Credibility of Witness.

The credibility of a witness who has been impeached by proof of a former declaration at variance with his testimony may be supported by evidence of his good character for truth and veracity. (p 801)

7. Evidence Witness Impeachment.

Where a witness is introduced by plaintiff for the first time in rebuttal, the defendant should be permitted to introduce evidence to impeach him. (p. 801).

8. Remarks of Judge Trial Court Error.

Remarks made by the trial judge in the presence of the jury (referring to a witness who had testified for the State), as follows: "Suppose Dr. Burgess, whose integrity is not to be questioned, when placed by a party upon the witness stand to testify as to matters coming within his professional conduct or employment, and having so testified, the opposite party was to bring in two or three witnesses from another county, say, from Huntington, who were entire strangers to the people of Wayne county, and who upon the witness stand, were to testify to their having heard Dr. Burgess, in Huntington, make statements directly contradicting those made by him on the witness stand; would it not be a reasonable and logical rule that would permit the party so calling him to introduce, upon rebuttal, witnesses acquainted with his general reputation, to testify as to his good character for truth?" the "two or three witnesses" referred to being summoned as experts on behalf of the defendant, and so testified in the case, touching the matter of the evidence of said witness Burgess, held to be error, which might prejudice the defendant. (p. 805).

Error to Circuit Court, Wayne County.

Virgil Staley was convicted of voluntary manslaughter, and brings error.

Reversed.

Marcum, Marcum & Shepherd and J. M. Tieman, for plaintiff in error.

Edgar P. Rucker, Attorney-General, and Edwin M. Keatley, for the State.

McWhorter, Judge:

Upon an indictment against Virgil Staley in the circuit court of Wayne County for the murder of Lafe Adkins, in the form laid down in section 1, chapter 144, Code, the jury returned a verdict as follows: "We, the jury, agree and find the defendant, Virgil Staley, not guilty of murder in the first or second degree, as charged in the within indictment, but do agree and find the defendant, Virgil Staley, guilty of voluntary manslaughter." The prisoner, by his counsel, moved the court to set aside the said verdict, and grant him a new trial, because the verdict is not in good form, and because it is not certain, but is uncertain and indefinite, and does not state the jury finds the defendant guilty of any offense charged against him in the indictment in the case, which motion was overruled, and exceptions taken. Appellant's counsel say this was error, and that their contention on this point is clearly borne out in State v. Ncwsom 13 W. Va. 859, where it is held that no judgment could be entered upon the verdict in that case, because it was too vague, indefinite, and uncertain. That was an indictment under section 9, chapter 144, Code 1868, for unlawful shooting, etc. The verdict was: "We, the jury find the prisoner, James New-som, guilty of unlawful shooting with intent to maim, disable, disfigure, and kill, and ascertain the term of his confinement in the penitentiary at one year; and we find him not guilty of malicious shooting." It will be observed that the verdict just quoted makes no reference whatever to the indictment. In Hoback v. Com., 28 Grat. 922, the verdict is in almost the precise words as the one at bar: "We, the jury, find the defendant John Hoback, not guilty of malicious shooting, as in the within indictment charged, but guilty of unlawful shooting with intent to maim, disfigure, disable, and kill, and fix his term of confinement," etc., which verdict was sustained. The whole verdict must be taken together, and being indorsed on the indictment, or referring to it, such reference applies as to the whole verdict, and there can be no uncertainty about it. Judge Moncure, in his opinion in Hoback's Case says: "A verdict of a jury in a criminal case must always be read in connection with the indictment. And if it be certain, upon reading them together, what is the meaning of the verdict, it is suffi-ciently certain.'' It is contended also, as set out in the bill of exceptions No. 10, that the court erred in refusing appellant's motion to set aside the verdict and grant him a new trial, because the trial was not commenced, held, and had at the court house of Wayne County (wherein the trial was held), and also in refusing his motion in arrest of judgment upon said verdict, as set out in his bill of exceptions No. 11.In support of his contentions, he introduced witnesses, as well as the proclamation of the governor, to prove that the court house of Wayne County, on the 6th day of March, 1896, was totally destroyed by fire, and that the lower room of the Odd Fellows' Building, in the town of Fairview, wherein the court house was located, had been by the governor of the State, under section 7, chapter 114, Code, designated and appointed as the place for holding the county and circuit courts for said county so long as the reason therefor might continue. The court house of the county had been burned, and, under the statute, temporary provision Had been made for holding the courts in another building, only as long as the reason therefor continued. When the court house was replaced and fit for occupation, the reason ror holding the court elsewhere continued no longer, and it appears from the record that the court was being held in the court house when the trial of appellant was began, and was had and completed there. Section 11, chapter 114, Code, provides that "when the place of holding any court or the day for commencing any term is changed. * * * there shall be no discontinuance, but every notice, recognizance or process taken or returnable to the day on which the failure oc curred, or to any day between that day and the next that the court may sit, or to the day and place as it was before such change, * * * shall be in the same condition and have the same effect, as if given, taken or returnable, or continued to the substituted time and place," etc. It was doubtless a notorious fact that court was being held in the new court house, the place provided especially for it, and I see no provision in the statute for any ceremony to enable the county authorities to take possession or occupy the building erected for that purpose; but, whenever it is so occupied, the temporary occupation of the substituted place has ceased, and the reason for its occupation no longer continues; and to cease to occupy for court purposes the regular court house again, no matter how informally it may have been appropriated to the use of a court house, some one of the reasons for vacating it set forth in section 7 of chapter 114 of the Code must exist, and the necessary steps taken therefor under said chapter. The trial began and was proceeded with, without objection, until its close, when, before sentence of the prisoner, he moved in arrest of judgment for that reason, which motion was properly overruled. This is a purely technical objection. No constitutional right of the prisoner was violated, nor was he in any way prejudiced by it.

Appellant's bill of exceptions No. 2 is to the giving of the State's instructions to the jury, Nos. 1 to 7, inclusive: Instruction No. 1: "The court instructs the jury that, where a homicide is proved, the presumption is that it is murder in the second degree. If the State would elevate it to murder in the first degree, she must establish the characteristics of the crime; and, if the prisoner would reduce it to manslaughter, the burden of proof rests upon him." Instruction No. 2: "The court instructs the jury that a man is presumed to intend that which he does, or which is the immediate or necessary consequence of his act. And if the prisoner, with a deadly weapon in his possession, without any or upon very slight provocation, gives to another a mortal wound, the prisoner is prima facta guilty of willful, deliberate, and premeditated killing, and the necessity rests upon him of showing extenuating circumstances, and unless he proves such extenuating circumstances, or the circumstances appear from the case made by the State, he is guilty of murder in the first degree." Instruction No. 3: "The court instructs the jury that the use of a deadly weapon being proved, and the prisoner relies upon self-defense to excuse him for the use of the weapon, the burden of showing such excuse is on the...