State v. Stover
| Decision Date | 22 December 1908 |
| Citation | 63 S.E. 315,64 W.Va. 668 |
| Parties | STATE v. STOVER. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
An instruction that if the accused unlawfully and intentionally hit the deceased in the head with a pistol, and killed him though the accused did not intend to kill, yet he is prima facie guilty of murder in the second degree, is not binding on the jury to find that degree of murder, and does not prevent them from finding voluntary manslaughter or self-defense, and is not error.
[Ed Note.-For other cases, see Homicide, Dec. Dig. § 308. [*]
For other definitions, see Words and Phrases, vol. 6, p. 5549.]
The fact that on a criminal trial the indictment, having written on it a former verdict of guilty, is taken by the jury to its room, no objection having been made to its doing so, is not ground for new trial.
[Ed Note.-For other cases, see Criminal Law, Dec. Dig. § 918. [*]]
What may be taken by the jury to its room?
[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2054-2059; Dec. Dig. § 858. [*]]
Appeal from Circuit Court, Raleigh County.
Lantie Stover was convicted of murder in the second degree, and brings error. Affirmed.
M. F. Matheny and G. W. Williams, for plaintiff in error.
The Attorney General, A. A. Lilly, J. W. Ball, A. P. Farley, and A. M. Belcher, for the State.
Lantie Stover was indicted for the murder of John Lewis in Raleigh county, and two trials by a jury resulted in a verdict of guilty of murder in the second degree. From the last sentence in the criminal court of Raleigh county Stover took a writ of error to the circuit court, and, the latter court having affirmed the sentence, Stover comes here by a writ of error.
It is useless to detail evidence. As I have several times written, it is not the office of an opinion in this court, except in rare cases to detail evidence, but to pass on legal questions. In this case it is enough to say that Stover, a constable, had arrested the son of John Lewis, and while taking him past the house of Lewis a quarrel and altercation arose between Stover and Lewis and his wife, in which Stover struck John Lewis on the head two licks with a pistol, by one of the licks breaking the skull of Lewis, causing his brains to ooze, from which wound Lewis died in a day or two. There is a considerable volume of evidence on both sides, and the decision of the case involves the question of self-defense, or, if not that, then whether the case was one of murder or voluntary manslaughter. That Stover killed Lewis is not a question in the case. The most important question in the case comes up upon an instruction telling the jury that if they believe from the evidence that Stover "unlawfully and intentionally hit John Lewis in the head with a pistol, although they may believe that Stover did not intend to kill the said John Lewis, yet the said Stover is prima facie guilty of murder in the second degree." It is urged that this instruction is bad as binding the jury to say that upon the facts put in it they were bound to find Stover guilty of second degree. If that were so, we should gravely doubt the instruction. The Attorney General seeks to vindicate it on the oft-repeated law that, when a homicide is proved, the presumption is that it is murder in the second degree. But the courts, when saying that, almost universally say that if the defendant would reduce the degree of homicide, or make it self-defense, he must show it or those defenses must arise from the evidence of the state. This instruction does not do that. We do not think that the law cited by the Attorney General for the proposition stated will answer the objection to this instruction. The question we have is: Does this instruction suit the case as presented? The voluminous evidence raises the question, as the defense urges, of self-defense and voluntary manslaughter. Does this instruction leave the door open to the jury to consider those defenses? If it does not, it is bad. If it does so, it is good. Upon mature consideration the court has concluded that the instruction is good. Note that the instruction does not say unqualifiedly that, if the facts supposed in it exist, the prisoner was guilty of second-degree murder, because it uses the words "prima facie." Those are words of very common use in the courts and in newspaper reports of judicial decisions. They import that the evidence produces for the time being a certain result; but that that result may be repelled.
They import that there is a presumption of guilt arising from the facts supposed in the instruction; but they do not import that that result is conclusive beyond any showing to the contrary. They import that the door was open to the jury to find either voluntary manslaughter or self-defense. This must be so, else why those words? This must be so, else we are bound to say that a jury could not understand their meaning. We must attribute some intelligence to men selected for the important function of jury service. Again, must we not presume that the progress of the trial gave the jury an understanding of these words? Must we not understand that the court gave the jury information as to them, or that the argument of counsel did, and that the jury understood them, especially when we know that 15 instructions for the defense were given, as shown by the court order, but which were not incorporated in the record? Certainly the able counsel for the prisoner did not let those features of defense pass without presenting them to the jury by instructions or by argument. If he did not, he waived them, which we do not suppose he did do.
Another instruction was that if the jury believed that Stover "intentionally hit John Lewis with a pistol and killed him, although they may believe that he did not intend to kill Lewis, yet the prisoner cannot rely upon accidental killing to excuse him." We do not see any error in this instruction. How could he rely on accidental killing if he intentionally struck with a pistol? But this instruction does not seem to be relied on.
It is assigned as error that the court permitted the indictment to be taken by the jury to their room when considering of their verdict; the indictment having indorsed upon it a verdict of a former jury finding the prisoner guilty of murder in the second degree. It has been a subject of much discussion in courts as to what papers can be carried by the jury into their room...
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