State v. Vineyard.

• Decision Date: 16 October 1917
• Parties: State v. Vineyard.
• Court: West Virginia Supreme Court

81 W.Va. 98

State

v.Vineyard.

Supreme Court of Appeals of West Virginia.

Submitted October 9, 1917.

Decided October 16, 1917.

1. Indictment and Information Negativing Presumption of In-

fant 's Incapacity.

In an indictment for murder against an infant under fourteen years of age it is not necessary to negative the presumption of incapacity of the defendant to commit the crime charged against him. (p. 101).

2. Criminal Law Presumption of Incapacity-Instruction.

An instruction to the.jury in such a case simply indicating the degrees of crime which may be found under an indictment for murder, if the evidence beyond a reasonable doubt' should warrant it, is not objectionable on the ground that it ignores the presumption of the incapacity of the defendant, (p. 102).

3. Infants Capacity to Commit Crime Presumption end Burden of Proof Degree.

But an instruction in such case telling the jury that when the homicide is proved it is presumptively murder in the second degree, and if the state would elevate; it to first degree minder the burden is upon it, and if the defendant would reduce the degree of the offense; the burden is on him, constitutes reversible error. The law casts no such burden on an infant under the age of fourteen years who is presumptively doll incapax. (p. 102).

4. Sam i; Crimes Instructions Malice.

And an instruction in such a case, without more, which tells the jury that it is not necessary that malice should exist in the heart of the accused against the deceased, and that malice and the other ingredients of murder may be inferred from the fact of the cutting or killing of the deceased with a deadly weapon, is erroneous, when applied to an infant under the age of fourteen years, prima facie incapacitated to commit the offense, (p. 103).

5. Same Capacity to Commit Crime.

And it is error for the court in such a case to tell the jury that if the defendant at the time of the homicide "had sufficient understanding as to know that the commission of that offense was wrong," the same law was applicable to him as to persons over the age of fourteen years. To convict an infant in such case it is necessary to show also that he knew or understood the nature and consequences of his act and showed design and malice in its execution. (p. 104).

Error to Circuit Court, Roane Count}'. Cully Vineyard was convicted of involuntary manslaughter, and he brings error.

Judgment reversed, verdict set aside, and new trial awarded.

Harper & Baker, for plaintiff in error.

E. T. England, Attorney General, and Charles Ritcitte, Assistant Attorney General, for the State,

Miller, Judge:

Upon an indictment for the murder of (Joy Gandee, a boy between twelve and thirteen years of age, the defendant, Cully Vineyard, a boy eleven years one month and seven days old, was convicted by the jury of involuntary manslaughter, and thereon the judgment of the circuit court now complained of was that defendant be "committed to the West Virginia Industrial School for boys, of this state, there to be received and treated and retained in all respects as other youths therein, and therein to remain until he shall have arrived at. the age of twenty one years, unless sooner discharged by the State Board of Control."

The evidence in the case, besides disclosing the ages of the two boys, shows that they were sons of near neighbors in the country, both families being on friendly and intimate terms, and that the boys played together, at home and at school; and that prior to the clay of the homicide, there wras little, if any, evidence of any ill feeling existing between these children, and none except such as would naturally occur between children of their ages at play. There is some evidence that a day or two before the homicide defendant with other boys threw hickory nuts or other small objects at a pet crow owned by deceased, but that defendant at once ceased doing so when deceased objected, and no ill feeling between the boys appears to have been engendered thereby.

The only proof showing or tending to show deliberation or intent on the part of defendant to assault or injure deceased was that on the night before the homicide one witness, an employee of defendant's father, swore that defendant asked him for his knife, and when asked what he wanted with it, said he was going to cut Coy Gandee?s guts out, and that he would show witness blood on it, and also asked him for a razor. Two witnesses for defense, including defendant's father, swore, however, that this witness had previously told them that all the defendant asked for was his knife, and that lie made no mention of a razor, and this contradicted him on this point. On cross examination, moreover, he admitted that defendant exhibited no ill feeling, and that as a matter of fact he appeared to be and he thought the boy was joking, and that lie did not lend him his knife.

And on thenext day, the day of the cutting, two of defendant's schoolmates occupying seats near him swear that defendant requested one of them the loan of his knife, saying he was going to split or cut the bib of Gandee's overalls to scare him, and one of these boys says he heard defendant call Gandee "sons of bitches", and like names. One of them swears also that he saw defendant with a knife on the morning of the same day, but no one swears that he made any use of the knife except to whittle a stick, until the moment of the cutting, which occurred at the forenoon recess of the school they were attending in the country.

The particular occurrence in which defendant intentionally or by accident stabbed deceased, and from which he died a day or two later is described as follows: On the same or the previous day the Gandee boy was seen to grab the defendant by the collar and jerk him around vigorously; and at the morning recess about ten o'clock defendant went out and was seen going away from the school house some little distance, before the Gandee boy came out: when the latter emerged from the school house, he started in the direction of the defendant and on overtaking him was seen to grab him by the collar and to jerk him nearly down to tin; ground, and when the defendant was observed striking backwards two or three times. When deceased got up he complained that defendant had cut him and held his abdomen where a small puncture was found and through which the small intestine had begun to protrude, and through which, by the time the doctor arrived, it had become extended some twelve or four- teen inches. This part was amputated by the surgeon and the end of the intestine spliced and then re-inserted in the abdomen. Peritonitis set in a couple of days afterwards and the boy died.

Numerous grounds are assigned for reversal of the judgment. First, the sufficiency of the indictment is challenged. It is in the form prescribed by the statute and many times approved on error to this court, But it is said that as the defendant is an infant under fourteen years, and presumptively incapacitated to commit the crime of murder, the indictment should have negatived this presumption of incapacity, and is bad for its omission to do so. The general rule is well settled that the indictment need, not negative matters of defense, such as matter of excuse and justification wdiichare to be set up by defendant, 1.2 Standard Ency. of Proc. 350.

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