State v. Toney Stafford.

• Decision Date: 25 October 1921
• Docket Number: No. 4265.,4265.
• Citation: 89 W.Va. 301
• Parties: State v. Toney Stafford.
• Court: West Virginia Supreme Court

89 W.Va. 301

State

v.Toney Stafford.

No. 4265.

Supreme Court of Appeals of West Virginia.

Submitted October 19, 1921.

Decided October 25, 1921.

1. Indictment and Information Indictment Not Quashed Where

Grand Jurors Were Selected as Statute Required at Levy Term.

Prior to the legislature of 1919, the county court was required to prepare annually a list of grand jurors and deliver same to the clerk of the circuit court at its levy term which begins on the 2nd Tuesday in August and by operation of law is adjourned until the 4th Tuesday in that month, at which the levy must be laid as provided in sec. 2, chap. 28A, Barnes Code, 1918; and an indictment found and returned by grand jurors properly selected from such list so prepared either at the session begun on the 2nd Tuesday in August, or at the adjourned session begun on the 4th Tuesday of that month, should not be quashed for the alleged reason that such list was not prepared and delivered at the levy term. (p. 305).

2. Homicide In Prosecution for Attempt to Murder, Instruction

as to Guilt of Party Watching to Prevent Surprise of Those Doing the Shooting Held Sufficient.

An instruction given in a trial on an indictment for felonious attempt to kill, instructing the jury in effect, that if they believe from the evidence that the defendant, and others jointly indicted with him, all or any of them being armed with guns, went within shooting distance of a mine tipple and cage then used for bringing men out of the mine and did, on a day named, lie in wait until certain persons named in the indictment came out of the mine in such cage, and that such other persons jointly indicted with defendant, or any of them, did then and there shoot with such guns at the persons coming out of the mine in such cage, with felonious intent then and there to kill them, or any of them, and that defendant was then and there present or within about three hundred yards of such persons jointly indicted and watching to prevent surprise while such other persons were committing the offense, or with intention of giving assistance, should occasion arise, to such other persons and was near enough to do so, then the defendant would be guilty of an attempt to commit murder in the first degree, sufficiently states a concerted design between defendant and those actually doing the shooting; and sufficiently states that defendant, by "watching to prevent surprise," was participating in the murderous intent. (p. 307).

3. Criminal Law Abstract Instruction Improper But will Not

Require Reversal Unless it Has Misled Jury.

An instruction which propounds an abstract proposition of law should not be given, but if given and there be evidence to which it is applicable, the appellate court will not reverse for that cause unless it is clear that the jury has been misled. (p. 309).

4. Same Instruction Correctly Defining Statutory Offense is Not

Reversible on Theory of Assuming Facts not Proven.

The giving of an instruction which correctly states a definition of a statutory offense for the violation of which defendant is indicted and being tried, is not reversible error on the theory that it assumes facts not proven, and thereby invades the province of the jury. (p. 309).

5. Homicide Instruction That Verdict Must be Guilty of At-

tempt to Murder or Not Guilty, Proper, Where Lesser Offense Barred by Limitation.

An instruction given in the trial of an indictment charging defendant with a felonious attempt to kill, "that under the law and the evidence in this case that they (the jury) can return only one of two verdicts; Guilty of an attempt to commit murder in the first degree, or not guilty," is properly given where the evidence is conclusive and uncontradicted that the offense, if any, was committed on the 16th day of November, 1917, and the indictment was not found and returned until the March, 1919, term of the court; as all offenses lesser than attempt to commit murder in the first de gree have been barred by limitation before the finding of the indictment, (p. 310).

6. Criminal Law Court May Permit Attorneys Employed to As-

sist Prosecutor to Continue Trial in Absence of Prosecutor.

Under sec. 7, chap. 120, Code, 1918, competent attorneys may be employed by any person to assist the prosecuting attorney in the prosecution of any person charged with crime; and if in the progress of a trial the prosecuting attorney is compelled by sickness or other valid cause to be absent from the trial, it is not error for the court, without objection on the part of defendant, to permit the attorneys so employed to proceed with the trial and prosecute the same to conclusion, unless it clearly appears that defendant was prejudiced thereby. (p. 311).

7. Jury Juror Held Competent Although Stating That He Did

Not Think Much of Tabor Unions, Where Defendant Belonged to One,

A juror who on his voir dire says that he has no bias or prejudice against defendant because such defendant is an Italian, or is and was a member and officer of a labor organization at the time of the alleged offense, and that he could render a fair and impartial verdict from the evidence, regardless of the nationality of defendant or of the fact that he di'd or did not belong to a labor union, is a competent juror, although he also says that he "didn't think much of labor unions," and did not believe that labor unions were very conducive to law and order. (p, 312).

Error to Circuit Court, Raleigh County. Tony Stafford was convicted of attempting to kill by shooting, and he brings error.

Affirmed.

C. 17. Ward, and John M. McGrath, for plaintiff in error, E. T. England, Attorney General, R. Dennis Steed, Assistant Attorney General and S. B. Avis, for the State.

Lively Judge:

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, Torn Letheo, Toney 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 Ransom 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 Toney Stafford.

In October, 1917, the E. E. White Coal Co. had a controversy with some of its employees, at the Glen White mines, who were members of the United Mine Workers of 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 Toney 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 fifty to three hundred shots from high powered rifles were fired at a cage containing, among others. John Ransom. John Spears and H. E. Nuckolls, the bullets striking all around the men but hitting no one. Witnesses testified that Toney Stafford, defendant, was armed with a shot gun 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 shot gun and that buck shot had been fired, also that paper shells were found on the mountain side rhe day after the shooting. Tom McGinnis, Dorr Snutter, 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 Lawrence Dwyer,...