State v. Tucker.
| Decision Date | 14 March 1903 |
| Citation | 52 W.Va. 420 |
| Parties | State v. Tucker. |
| Court | West Virginia Supreme Court |
Where the record shows that and on the 14th day of February the jury rendered a verdict of guilty on said plea, and on the 14th day of March following defendant moved the court to correct the record of the plea of not guilty entered January 30, and tendered affidavits of defendant, of defendant's counsel and others in support of the motion to show that the plea of not guilty was entered by defendant's attorney and not by him in person. Held: not error to refuse the filing of such affidavits, (p. 426).
The office of a bill of exception is to call the attention of the court to some specific matter as to which error is claimed and when the exceptant relies upon the bill of exceptions he must show by means of it the error complained of clearly and affirmatively; and in order to have relief he must further show that such error was to his prejudice. (p. 429).
Where the record shows that on a certain day (and fifteen others naming them) "were empaneled and sworn a grand jury of inquest, in and for the body of the county of W., and having been charged were sent to their room to consider of the business before them" and no irregularity in summoning or convening the grand jury is pointed out in a bill of exceptions it will be presumed that no such irregularity existed, (p. 429).
It is not error to exhibit to the jury on the trial of a homicide the deadly weapon or instrument with which the act was committee, the same being identified as the one used. (p. 434).
Writ of error and supersedeas to Circuit Court, Wood County. Action by State of West-Virginia against Thomas Tucker. Judgment for plaintiff, and defendant brings error.
Affirmed.
N. H. Moss, Jr., and Attorney General, for defendant in error.
J. F. Laird, for plaintiff in error. McWhorter, President:
Thomas Tucker was convicted in the criminal court of Wood County upon indictment for the murder of Mary Beall, alias Mary Bell, alias Mary Helmick, on the day of January, 1902. Defendant applied to the circuit court of Wood County for a writ of error, which was refused on the 16th day of May, 1902. He then applied to, and obtained from one of the judges of this Court, a writ of error and supersedeas to the execution of the judgment rendered by the said criminal court. In the course of the trial the defendant, by counsel, took seven separate bills of exceptions to the rulings of the court. The first bill of exceptions sets out that after the jury had returned their verdict in the case the prisoner moved to set aside the verdict and grant him a new trial on the ground that the verdict was contrary to the law and the evidence, and on the further ground of after discoverd evidence, and filed in support of his motion the affidavits of J. L. Frankling, John Carter and W. A. Smith. The court overruled the motion, to which ruling the defendant excepted. J. L. Frankling, the first witness sworn in the case, says that when Tucker came home that evening the white woman, Mary Bell, was there waiting for the defendant. "She came at half past seven and waited there until a quarter after eight waiting for him to come home; and no sooner than he had been in he threw off his hat and pulled off one shoe to go to bed, and called to his ma to give him some tobacco; and this woman said 'come on and go with me up street/ and he didn't answer, and he started to make a cigarette, and he raised up and sj)oke to her and she never answered him; and she said, 'come on and. go with me to the corner any how;' and he said, 'all right/ and went to the porch; and he said, 'it is raining too hard out there;' and she says, 'come on, ' and he went back and they pitched into quarreling, and I could not understand what was said; and she says, 'come on' and he says, 'I will go with you to the corner if it will do you any good;' and she started off and says, 'come on and go up to the corner; I will make it all right; I will fix you.' Q. When did you first see him again. A. Well, in about twenty minutes after that he came back hollering, and he said, 'Ma, I am ready to die now; I have killed Mary Bell/ and she said, 'No, you haven't.' I got up then and started after an officer to manage him. I goes up street Well, I started after an officer, and in going up it was very dark and raining, and I fell over this body, which I supposed was a body until I struck a match; so I undertook to light a match and see what it was, and I saw that there was something lying there, but I could not tell what it was; my match. wrent out. Q. When you first struck the match what did you see? A. I thought it was a person. I goes to headquarters and an officer came down with me. He threw his light on the body." He and the officer then went to the house, and. in answer to the question, "What occurred when you got to the house?" Q. A. "He had a little blood on his hands and on his cuff." Q. "Hid you notice anything in his hand?" A. "He had a razor." The razor was shown the witness and identified as being the same that the prisoner had. John Carter said he was attending church that night and was sent for and went up stairs where Tom Tucker was: that he was going through the room and Tom's step-father had Tom by the arm. He says, "Uncle Jack, I clone it; I not woman and want to die." I says, "No, you will not kill yourself." Mr. Tucker took hold of his arm. Then he repeated to me: "Give me my revolver, I want to kill myself;" and I says, "No, Torn, as you did not do yourself up while you was at it you can't do it now." And then they went for the doctor. He says, "Did you ever love a woman?" And I says, "No, never enough to kill her and kill myself." And then he says, "Well, I killed her for love, and want to kill myself." And it was all I could do to hold him. I staid there until the policeman came." W. A. Smith testified as follows: "Well on the night of the murder I was at the depot, B. & 0. depot, at the 10:30 train. Q. What position do you occupy, if any? A. Lieutenant of police. I went ahead and met Mr. Franklin on the corner. I went ahead down to the corner of Sixth and Ann streets; just a few steps below the woman was lying there. I had a flash light in my pocket and I flashed it on her. Her throat was cut. I went ahead after Tom Tucker down to his father's house, and lie was there walking the floor; and I went in and he was talking something about writing a letter to his brother. I says, "What is the trouble here, Tom." He says, "I killed her because I loved her." Mr. Carter was in there. I told him to take hold of him and make him sit down. He sat there a few minutes and wanted to see his mother. She said she didn't want to see him, the condition he was in. He wanted to send and get some beer. He wanted to send for some of his friends, the boys he had been running with. Some officers came around. I had them go and telephone for an undertaker and for a cab to take him away in. He did not look able to walk. I also had them to telephone for Dr. Keever, and Dr. Keever came in and he said to take him to the county jail. Q. What was the matter with him? A. He had cut a gash in his throat. Q. Well, now, you say when you would not let him send for the beer it angered him? A. Yes sir; anything that we crossed him in he seemed to get angry and tried to tear loose from us. He further stated that "After we had started to jail with him we got round the corner about thirty steps I presume, he says, T killed her and I ought to go to hell for it.' " J. E. O'Neal, a city policeman, says: "I got orders from the night clerk to go down on Sixth street, that there was a woman killed. I got down and. run right on the woman and seen, her laying there on her back with her eyes open and her throat cut. I went down to Tucker's home and went in. As I went in, Tom says, "Hello, Jim," and shook hands with me. Q. Who did? A. Tom Tucker. Lieutenant told me to go and telephone for an undertaker and the coroner, and told me to take charge 01,
I went back down and took hold of Tom and got his coat on and took him to jail. Q. State whether or not the defendant exhibited any temper there that night? A. No; I do not know. Q. What was he doing? A. He said he wanted to see his mother and wanted to write a letter to his brother. I believe he did write some words to his brother. Every little bit he would say, "I want to see my mother," "I want to see my mother." We took him out and when we got up street he pulled his coat up this way (indicating). When Ave got around by Camp's house he says: "I will go to hell for this." I says, "How is that." He says, I told him to walk faster. He says, "I can run if you want me to." Q. Was he talking sensible? A. Oh, yes, he acted sensible. He acted like he was drunk. I could smell the whiskey on his breath. He was not boisterous or any ways dangerous or anything." Dr. W. S. Keever, coroner, states that he found the body of the woman on the pavement on Sixth street, Mr. O'Neal guarding the body; that he had information that the man who killed her was in the last house on Sixth street; that he went to the house;...
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