State v. Stevenson

• Decision Date: 22 October 1962
• Docket Number: No. 12129,12129
• Citation: 127 S.E.2d 638,147 W.Va. 211
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Ernest STEVENSON.

Page 638

127 S.E.2d 638

147 W.Va. 211

STATE of West Virginia v. Ernest STEVENSON.

No. 12129.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 23, 1962.

Decided July 3, 1962.

Dissenting Opinion July 25, 1962.

Rehearing Denied Oct. 22, 1962.

Syllabus by the Court.

1. Murder by wilful, deliberate and premeditated killing or in the commission of or attempt to commit the offense of rape or robbery is murder of the first degree. Code, 61-2-1.

2. A verdict of guilty of murder of the first degree will not be set aside on the ground of insufficiency of the evidence where the evidence establishes such offense as defined by statute beyond a reasonable doubt.

3. A verdict of guilty in a criminal case consistent with a reasonable interpretation of the evidence and circumstances proven will not be disturbed by this Court.

4. A verdict of murder of the first degree, approved by the trial judge and the circuit court sitting as an intermediate appellate court, will not be set aside by this Court on the ground of the insufficiency of the evidence unless it is clear that the verdict is unwarranted by the evidence or that the jury was influenced by bias, passion, prejudice or some other ulterior motive.

5. 'Separation or misconduct of the jury in a criminal case only raises a presumption of impurity in the verdict, and if that presumption be fully overcome and it be shown beyond reasonable doubt that the prisoner has not been prejudiced thereby, such separation or misconduct does not vitiate the verdict.' Syl. Pt. 8, State v. Clark, 51 W.Va. 457 [41 S.E. 204].

6. The admission of the testimony of police officers, to whom an oral confession was allegedly made by the defendant, as to the confession and the circumstances under which it was made, and which circumstances manifestly show that such confession was not obtained by inducement of a worldly or temporal character in the nature of a threat, promise or intimidation, is not error.

7. Where a defendant in a criminal case categorically denies having made an oral confession, a simple question of fact is presented as to whether such confession was made and a trial court is not required to determine by preliminary examination whether the alleged confession was voluntarily made.

Harry F. Thompson, Jr., Tom T. Baker, Huntington, plaintiff in error.

C. Donald Robertson, Atty. Gen., Claude A. Joyce, Asst. Atty. Gen., Charleston, defendant in error.

BROWNING, Judge.

Ernest Stevenson, hereinafter referred to as defendant, was convicted of the offense of murder of the first degree in the Common Pleas Court of Cabell County on September 22, 1960. A motion to set aside the verdict and grant him a new trial was subsequently overruled and, the jury having failed to recommend in their verdict a sentence of life imprisonment, judgment was entered thereon sentencing the defendant to be executed on January 6, 1961. The Circuit Court of Cabell County, upon writ of error, affirmed that judgment to which action this Court granted a writ of error and supersedeas on September 18, 1961.

Perhaps a brief resume of the appellate procedure in this case is indicated. Section 1 of Article 8 of the Constitution of this State provides that 'The judicial power of the State shall be vested in a supreme court of appeals, in circuit courts and the judges thereof, in such inferior tribunals as are herein authorized and in justices of the peace.' Section 12 of Article 8 provides that circuit courts 'shall have appellate jurisdiction in all cases, civil and criminal, where an appeal, writ of error or supersedeas may be allowed to the judgment or proceedings of any other inferior tribunal. * * *' The Common Pleas Court of Cabell County was created by statute pursuant to the provisions of the Constitution of this State and has jurisdiction in criminal matters. This Court held in State v. McLane, 128 W.Va. 774, 38 S.E.2d 343, that there could be no direct review of a judgment of a court of limited jurisdiction and that the circuit court of the county wherein such court of limited jurisdiction sat had exclusive jurisdiction to review the judgments of such court.

Upon petition of the defendant, the Honorable John W. Hereford, Judge of the Circuit Court of Cabell County, granted a writ of error to the defendant to the final order of the Common Pleas Court of Cabell County, entered on the 14th day of October, 1960, and thereafter a supplemental petition for writ of error was filed by the defendant alleging certain misconduct of the jury during the trial. On January 6, 1961, the Circuit Court, after a hearing, 'on said original petition and said supplemental petition,' remanded the case 'to the Common Pleas Court of Cabell County, West Virginia, for the purpose of determining and ascertaining the facts in connection with the alleged acts of misconduct raised by said supplemental petition, with affidavits attached, and to report such findings to this Court with the recommendation as to whether or not the alleged acts of misconduct are in the opinion of the said Common Pleas Court such acts of misconduct as would require' a new trial. Pursuant to the remand the Judge of the Common Pleas Court heard testimony upon that issue which covers 145 pages of the transcript of evidence before this Court. The Judge of the Common Pleas Court thereafter entered an order which state in part '* * * that the alleged acts of irregularities and misconduct on the part of the Jury are not such as would warrant the setting aside of the verdict of the Jury in this case and so recommends'. On the 26th day of April, 1961, the Circuit Court of Cabell County entered its order to which this Court has granted this writ of error in which that court found that 'the judgment of said Common Pleas Court is just, proper and plainly right'.

The errors relied upon by the defendant in this Court are: (1) The evidence is insufficient to support a verdict of murder of the first degree; (2) In admitting in evidence a purported oral confession of the defendant; and (3) The alleged misconduct of the jury.

At common law there were no degrees of murder. All murder was punishable by death. However, the Legislature of this State has seen fit to divide murder into murder of the first degree and murder of the second degree. Code, 61-2-1, provides:

'Murder by poison, lying in wait, imprisonment, starving, or by any wilful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, rape, robbery or burglary, is murder of the first degree. All other murder is murder of the second degree.

'In an indictment for murder and manslaughter, it shall not be necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it shall be sufficient in every such indictment to charge that the defendant did feloniously, wilfully, maliciously deliberately and unlawfully slay, kill and murder the deceased.'

There can be no murder without a homicide but the converse is not true. A homicide may be murder of the first degree, of the second degree, or voluntary manslaughter or involuntary manslaughter or it may be justifiable. State v. Galford, 87 W.Va. 358, 105 S.E. 237. A homicide becomes a criminal offense only if the corpus delicti is established just as in any other offense. In State v. Beale, 104 W.Va. 617, 141 S.E. 7, 141 S.E. 401, this Court said that to constitute the corpus delicti in a case of homicide two fundamental facts must be established: (1) the death; and (2) the existence of criminal agency as the cause thereof. When the State has established by the requisite proof the corpus delicti the presumption is that it is murder of the second degree. If the State would elevate the offense to murder of the first degree, the State must establish the characteristics of that crime and, conversely, if the prisoner would reduce it to manslaughter or justifiable homicide the burden of proof rests upon him. State v. Morrison, 49 W.Va. 210, 38 S.E. 481; State v. Douglass, 28 W.Va. 297; State v. Cain, 20 W.Va. 679.

The deceased, Louise Davis, was the manager of the Atlantic Sea Food Market, located at 1642 8th Avenue in the City of Huntington, Cabell County, West Virginia, a business enterprise which was usually open between the hours of 6:30 p. m. and 2:00 a. m. on Thursday, Friday and Saturday of each week. On Thursday, February 4, 1960, the owner came to the market between 10:00 and 11:00 o'clock p. m., and determined that there was approximately Twenty Dollars ($20.00) in petty cash in the cash register. The market consisted of two rooms lighted by either three or four single light bulbs to each of which a string was appended. The outside was lighted by a light controlled by a switch located over the door on the inside of the building. The owner returned to the building on the morning of February 5, 1960, at approximately 11:00 a. m., found the front door closed, but not locked; the lights out, one 'fire' burning in the stove; and, discovered the body of deceased in the rear room.

A pathologist testified: '* * * First of all, the fact had some sort, didn't know what it was, it looked like sooty mud and some sort of fine gravel and sand on it. We washed that off and found an excoriation that looked like sand paper or something extremely rough had been sideswiped against the head. The lower jaw was broken on both sides and you could just move it around. The face, I hate to use the word, had been stomped so that you could take the nose and everything up here and move it around and then there was a huge, almost like a sunburst laceration over the left side of the forehead and then there had been multiple, multiple, numerous tearing wounds of the scalp. The bones of the head had been driven internally, into the brain. One large area was so big, 7 1/2 centimeters and numerous other sorts of circular defects around this larger one. There was a lot of homorrhage into the inside of the...