State v. Weisengoff

• Decision Date: 05 December 1919
• Docket Number: 3563.
• Citation: 101 S.E. 450,85 W.Va. 271
• Parties: STATE v. WEISENGOFF.
• Court: West Virginia Supreme Court

101 S.E. 450

85 W.Va. 271

STATE v. WEISENGOFF.

No. 3563.

Supreme Court of Appeals of West Virginia.

December 5, 1919

Submitted November 26, 1919.

Syllabus by the Court.

The Constitution guarantees to one accused of, and about to be tried for crime, a change of venue upon a showing of good cause therefor, and the accused bears the burden of proving to the satisfaction of the court the existence of such good cause.

The good cause alleged may be controverted by the state, and the question is one of fact addressed to the sound discretion of the court, and, if his ruling thereon is prejudicial to the accused, it is cause for reversal.

Affidavits, however numerous, merely negative in character, stating that affiants are familiar with the circumstances of the case about to be tried and know of no public prejudice or animosity against the accused that will prevent his having a fair and impartial trial in the county but stating no facts on which such conclusions are based, do not overcome the evidence of accused, supported by only a small number of witnesses, who swear to facts which clearly show the existence of a strong and prevailing public prejudice against the accused and a general belief in his guilt.

The accused may renew his motion for a change of venue at any time before the jury is sworn, and is entitled to file additional affidavits in support thereof; he should also be allowed to cross-examine affiants for the state then present in court. Evidence on a motion for change of venue may be taken at the bar of the court as well as by affidavits.

Where a continuance is asked on the ground of the absence of a witness for the accused, and it appears that he knew such witness was a nonresident of the state and made no effort to take his deposition, and showed no cause of surprise at his failure to attend at the trial, no cause for a continuance is shown.

An inadvertent remark made from the bench by the presiding judge, derogatory to the character of accused, but made a month before the case was tried and not in the presence of any of the jurors who tried the case, is not cause for reversal, if it appears from the record accused has had a fair and impartial trial.

Where the accused is charged with the murder of the sheriff, and his deputy becomes his successor in office, it is not error for a court to appoint a special officer, who, after being sworn and properly instructed, takes charge of the jury during the trial.

Resisting an arrest, which a proper officer is trying to make in a lawful manner by one charged with crime and knowing the officer's authority, is an unlawful act and such officer has the legal right to use such reasonable force as may be necessary to overcome the resistance, and if in resisting or attempting to escape the accused maliciously kills or fatally wounds the officer while he is acting in a lawful manner, the homicide amounts to "murder" but if there was no intention to kill or do great bodily harm and the killing was purely accidental, the homicide amounts to "manslaughter" only. Malice is an essential element in murder of either the first or second degree.

Contributory negligence has no application in a criminal prosecution, and where it appears a sheriff sought to arrest the accused by jumping upon the running board of his automobile while it was in motion and informing him that he had a warrant for him, and, when he failed to slacken his speed, by then trying to gain control of the steering wheel, whereupon the speed of the automobile was immediately, greatly increased, and continued for a distance of about 800 feet, when the automobile collided with an iron bridge, wrecking the machine and dashing the sheriff to his death against one of the iron columns of the bridge, the accused is guilty of murder if he could have stopped his machine and willfully refused to do so and intentionally collided with the bridge; but, if the collision was accidental, the killing is manslaughter only, and the fact that the sheriff's efforts to obtain control of the steering wheel may have been a contributing cause of the collision is no defense.

The exclusion of evidence to prove that a doctor dressed the wounds of the children of accused, who were riding with him in the automobile and were injured by the collision with the bridge, is not error.

The testimony of an undertaker, who prepared the body of deceased for burial, describing the condition of his body, caused by its violent contact with the bridge, is admissible to prove the cause of death.

Error from Circuit Court, Mineral County.

Peter Weisengoff was convicted of murder in the second degree, and he brings error. Reversed and remanded for a new trial.

Neely & Lively, of Fairmont, and Taylor Morrison, of Keyser, for plaintiff in error.

E. T. England, Atty. Gen., Chas. Ritchie, Asst. Atty. Gen., and E. L. Tyler and H. G. Fisher, both of Keyser, for the State.

WILLIAMS J.

Defendant was indicted and tried for the murder of Donald P. Davis, late sheriff of Mineral county, convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for ten years. He brings error, assigning numerous grounds for reversal of the judgment.

He petitioned for a change of venue, on the alleged ground that a strong feeling of prejudice existed in the minds of the citizens of Mineral county against him, both on account of the business conducted by him in Westernport, Md., just across the line from the town of Piedmont, where the homicide occurred, his business being that of a saloonkeeper, and he having been accused of selling intoxicating liquors in West Virginia in violation of law, and because of the great popularity of the deceased officer, claiming that it was not possible for him to obtain a fair and impartial trial in that county, and filed his own and the affidavits of four others in support thereof setting forth substantially the following facts: That, in a general way, affiants knew the circumstances surrounding the death of the late sheriff; that they had heard the case discussed by numerous persons from different parts of the county, and basing their opinion on such comments made in their presence and on the fact that defendant had been actively engaged in the saloon business in Westernport and had been charged with numerous violations of the prohibition statute of West Virginia; that by reason of the further fact that deceased was reported to have met his death while attempting to arrest defendant in connection with some alleged violation of the liquor laws, and for other causes, there exists a prejudice against defendant in Mineral county, on account of which affiants do not believe defendant can obtain a fair and impartial trial.

Petitioner also exhibited three newspaper articles, one published in the Mineral Daily News on the 28th of June, and another in the Mountain Echo on June 30, 1917, newspapers published in the town of Keyser, and alleged to have wide circulation in the county, the first of which gives a detailed account of the manner in which Sheriff Davis was killed, refers to defendant as a "cowardly brute," states that "it is said that the bulk of his fortune has been made and is being made by violating the West Virginia prohibition laws, and that over 50 per cent. of the violations in Tucker and Mineral counties come out of Weisengoff's saloon in Westernport," that he is doing a "large bootlegging business in West Virginia," that he utterly disregards the law and sells to boys at all times; and the latter characterizes him as "a Westernport outlaw saloon keeper," a "crime-soaked foreigner," and says:

"Those who are acquainted with the details of the efforts of Sheriff Davis to force Weisengoff out of the West Virginia field with his unlawful confederacy for violation of the prohibition laws, and the defiant threats of the outlaw, coupled with his known hatred of the fearless officer, believe that after the sheriff stepped on the car and the brutal foreigner actually had him in his power through the speed he was able to secure by manipulating the accelerator, his purpose was to dash the machine against the great steel framework of the bridge, kill or maim the officer and take his own chances of escape through his ability to handle the car. Results practically bear out this assumption."

Also, another article appearing in the Baltimore Sun, a newspaper alleged to be generally circulated in Mineral county, under the date of Keyser, W.Va., July 26th, in which it is stated that a change of venue will probably be asked for in the Weisengoff case, that "the feeling is ugly at Keyser against Weisengoff, and it was impossible to get a local attorney to defend him."

The state answered his petition and filed the affidavits of 177 residents of the county to the effect that affiants were familiar with the sentiment existing in their respective communities relative to the homicide and knew of no bias, prejudice, or personal feeling then existing among the citizens thereof against the defendant because of the homicide, and knew of no threats having been made against him, nor of the existence of any ill will that would prevent him from having a fair trial; that no excitement existed in the community; and that affiants knew of no desire to convict the defendant, "contrary to what the facts may show in said matter."

These numerous affidavits are purely negative and merely state the conclusions of the affiants, not facts from which the court could draw its own conclusion, as the law in such case requires. State v. Sheppard, 49 W.Va. 582-593, 39 S.E. 676, and State v. Douglass, 41 W.Va. 537-539 23 S.E. 724. It further appears that T. A. Dixon, a deputy of the deceased sheriff, assisted in procuring a number of...