State v. Waldron

• Decision Date: 13 June 1912
• Citation: 75 S.E. 558,71 W.Va. 1
• Parties: STATE v. WALDRON.
• Court: West Virginia Supreme Court

75 S.E. 558

71 W.Va. 1

STATE v. WALDRON.

Supreme Court of Appeals of West Virginia.

June 13, 1912

Submitted June 7, 1912.

Syllabus by the Court.

When self defense is relied on and there is some evidence that deceased was the aggressor, evidence of his recent act or acts of violence even towards third persons though uncommunicated to defendant, and so connected in time, place and circumstance with the homicide as to likely characterize deceased's conduct towards defendant, ought to be admitted to show the quo animo, for the question then is what deceased probably did, not what defendant thought he was going to do.

Upon principles enunciated in State v. Gravely, 66 W.Va 375, 66 S.E. 503, State v. Taylor, 57 W.Va. 228, 50 S.E. 247, and State v. Clifford, 59 W.Va. 1, 52 S.E 981, an instruction that homicide proved or admitted is presumed to be murder in the second degree is not wholly inapplicable, though self defense be relied on and the facts and circumstances shown in evidence tend to justify the killing, and to reduce the offense to one of lower degree.

The general proposition contained in an instruction that the law of self defense is the law of necessity, not limiting it to apparent necessity, but followed by the statement that unless the prisoner acted in the honest belief that it was then and there necessary to take the life of deceased in order to save his own life or free himself from some great bodily harm, he was not justified therein, and if the jury believed defendant though previously assaulted, used more force than was reasonably necessary to repel the assault or shot or continued to shoot after necessity for so doing had ceased, they could not acquit him, is not erroneous, for as a whole the instruction does limit the law of necessity stated to apparent necessity.

An instruction that where there is more than one assailant, the slayer has the right to act upon the hostile demonstration of one or all of them and to kill one or all if it reasonably appears to him that they are present for the purpose of acting together to take his life or do him some serious bodily injury, is not erroneously rejected where the same proposition is substantially covered in another instruction stated in terms more particularly appropriate to the concrete case.

Error to Circuit Court, McDowell County.

John M Waldron was convicted of murder in the second degree, and brings error. Reversed, and new trial granted.

Robinson and Williams, JJ., dissenting.

Wm. G. Conley, Lawson Worrell, and Greever & Gillespie, for plaintiff in error.

Anderson, Strother & Hughes, Strother, Taylor & Taylor, W. P. Payne, Flanagan & Perry, and Sanders & Crockett, for defendant in error.

MILLER J.

On an indictment for the murder of Ben Tate defendant was acquitted of murder in the first degree, but found guilty of murder in the second degree, and the judgment below was that he be confined in the penitentiary for the period of ten years.

The homicide, admitted, occurred on the night of January --, 1910, a Sunday night, in a brothel in Keystone, McDowell County. Defendant was a deputy United States Marshal, who at the request of White, town sergeant, had gone with him to this house to make an arrest for alleged illicit sales of intoxicating liquors. While waiting the return of White from the Mayor's office with warrants, defendant, who before White left to secure the warrants, had been invited on the outside of the house by Tate and his companion Gillespie, patrons of the house, and had declined, was on their coming out of the room of the mistress of this house, enticed by them into an adjoining room, where, almost instantly, the door being shut by one of them, the difficulty occurred, resulting not only in the death of Tate, but of Gillespie also, from pistol shots fired by defendant.

Defendant was the only living witness as to what actually took place in the room where the homicide occurred. He admitted the killing, but on his trial relied on self defense.

The controversy here is reduced to a few questions relating to the rejection of certain evidence proposed by the prisoner, and to the giving and rejecting of certain instructions to the jury.

First, as to the rejected evidence. On the trial, the prisoner, to establish his theory of self defense, was permitted to and did prove by the testimony of White that after he and White entered the house, and asked for the girl Blackburn, reported to have sold the liquor to Walter Waldron and Trivitts, Madge Murray, the mistress of the house, came out of her room and inquired of them, "Why do you all have me charged with selling whiskey and beer to-day?" and that another woman, Jennie Belcher, interposing said: "Make them show you a United States warrant before you go;" that the Murray woman then walked to a bed in the room, and to where, as he supposed, Tate was sitting on a chair, and sat down on his lap, and said to him: "'Sweetheart, you are not going to let them take me, are you?' or something like that; and he said: 'No, not as long as we are here,' and he raised up and pushed her off of his lap." This witness also says, that when Tate got up he walked around to the foot of the bed and stopped, and that witness said to him, we won't have any trouble, we will get a warrant, that he would go down and see Hale, the mayor, and get him up there and pull the whole house; that Waldron and he then walked out in the dance hall, where he wrote a note, proposing to send Waldron for the warrants, but after writing it concluded to go himself, as he thought he could find the mayor quicker. Continuing this witness says: "Then Mr. Tate walked around on this side, and Gillespie on this side (indicating), and touched him (Waldron) on the shoulder, and said he wanted to see him on the outside. He told him that if they wanted to see him, see him in here, and 'I don't see what business you have on the outside.' Gillespie spoke up and said they wanted to see him on the outside." Waldron himself, corroborates White entirely as to what occurred up to the time White left the house to go for the warrants.

As to what occurred immediately afterwards, Waldron further swears, and no fact or witness materially contradicts him: "As soon as Mr. White left they all went over to Madge's room and left me alone in the dance hall. I was standing there and in a short time two fellows came out of Madge's room and come up to me and the big fellow says: 'Come over in the room where you can sit down; it's no use standing up,' and pointed to the room right out across the little hall. There was a light in there and I just walked over, followed him. He walked right on in. I was behind him. I heard the door shut, and just turned my head that way (indicating) and the smallest one had his back to the door and this big fellow struck me. *** He knocked me down, I guess, the time he struck me. They both jumped on me and I caught on to the bed the best I could on it, then pulled myself up the best I could, trying to get my gun out all the time, shoved myself away from them," when he shot him, thinking he was in danger of being killed, or having great bodily harm done to him, his only reason for shooting.

In connection with this testimony and as further tending to show Tate and Gillespie were the aggressors, and establish his theory of self defense, the prisoner proposed, but was not permitted to prove, by two witnesses, Baxter and Hermanson, that but a few moments before the homicide, both Tate and Gillespie, in connection with two or three other men, were in a violent state of mind towards Hermanson; that but a few moments before White and Waldron entered the house Tate and Gillespie, as Baxter thought from their actions, acting under the influence of liquor, jumped on Hermanson, in aid of their lewd mistresses, and without other cause, beat him, while Hermanson was there waiting for two other women to come down stairs and pay him some money he claimed they owed him.

The attorney general and associate counsel justify the action of the court in excluding this evidence, not on the ground that it might not have influenced the verdict of the jury, but on the grounds, (a) that evidence of a single act of violence is not admissible to establish the turbulent and violent character of deceased; (b) that the conduct of Tate and Gillespie towards Hermanson was unknown to Waldron, and if for no other was inadmissible for this reason; and, (c) because the conduct of Tate and Gillespie constituted no part of the res gestæ, had no bearing upon or connection with the homicide, that there was no causal or even explanatory relation between that recent occurrence and the homicide.

In homicide cases, where the general character of the deceased for turbulence and violence is involved, the general rule established by the weight of authority, no doubt is, that evidence of isolated facts or specific acts forming no part of the res gestæ, and in no way connected with defendant, will not be received in evidence. 21 Cyc. 910, and cases cited in notes. But when self defense is relied on, and where as in this case, there is evidence tending to show the deceased was the aggressor, the dangerous character of deceased may be shown by the facts and circumstances attending the homicide, and so connected with it as to constitute a part of the res gestæ. 21 Cyc. 909; 1 Wigmore on Ev., section 363; State v. Morrison, 49 W.Va. 210, 218, 38 S.E. 481; Harrison v. Com., 79 Va. 374, 52 Am.Rep. 634. Moreover, Mr. Wigmore, 1 Wigmore on Ev., section 198, citing numerous cases, says: "When the turbulent character of the deceased, in a prosecution for homicide, is relevant (under the principle of § 63, ante), there is no substantial reason against evidencing the...