State v. Welch.
| Decision Date | 18 June 1892 |
| Citation | 36 W.Va. 690 |
| Parties | State v. Welch. |
| Court | West Virginia Supreme Court |
Jury.
The list of persons for jury service and the ballots of the names thereon prepared by the jury commissioners annually, at the levy term of the County Court, pursuant to chapter 116, Code 1891, take the place of and supplant lists and ballots made prior thereto, and ballots belonging to a former list are not to mingle in the box used for keeping jury ballots, from which jurors are drawn, with ballots belonging to the later list. Hence, a jury made up of jurors as drawn from such box, containing exclusively ballots belonging to the last annual list, is proper and valid. This does not refer to a list made subsequently to the making of such annual list in any year under order of court. (p. 091.)
Evidence Blood Stains.
A witness may give his opinion that stains seen by him are blood stains, and that a certain large stain seen by him upon bedclothing was the stain of a pool of blood. (p. 698.)
Evidence.
A witness may give his opinion that a depression in a bed was, from its shape and appearance, caused by the head of a person, he having seen and examined it. (p. 691.)
Evidence.
Opinion evidence discussed. (p. 691.)
Evidence.
A statement made by a person accused of crime upon the occasion of the preliminary examination before a justice, when he was not sworn or examined as a witness, is not inadmissible by reason of section 20, c. 152, Code 1891. (p 697.)
Murder.
A man is presumed to intend that which he does, or which is the immediate or necessary consequence of his act; and if the prisoner, with a deadly weapon in his possession, without any, or upon very slight provocation, gives to another a mortal wound, the prisener is prima facie guilty of willful, deliberate, and premeditated killing; and the necessity rests upon him of showing extenuating circumstances; and unless he proves such extenuating circumstances, or they appear from the case made by the State, he is guilty of murder in the first degree. (p. 701.)
7. Murder New Trial Degree is for Jury.
The question whether a particular homicide is murder in the first or second degree is one of fact for the jury. Where a jury has found the case to be one of murder in the first degree, as in other cases, the court should not disturb the verdict, unless the finding of murder in the first degree be plainly and manifestly contrary to or without sufficient evidence. (p. 708.)
P. J. Crogan for plaintiff in error cited 9 W. Va. 456; 14 W. Va. 851; 12 W. Va. 23; Code (1891) c. 116, s. 16; Stark. Ev. 96, 158, 157; 1 Greenl. Ev. 440, 530; Ros. Cr. Ev. 179; 23 W. Va. 288; Code (1891) c. 152, s. 20; 31 W. Va. 505; 28 W. Va. 297; 20 W. Va. 679; 2 Gratt. 594; 1 Leigh 669; 2 Humph. 439; 26 Gratt, 997; 8 W. Va. 820; Id. 744; 5 Mich. 1; 64 Mo. 191; 58 Mo. 408; Wright (Ohio) 20; 75 Fa. 424; 30 Tex. 466; 86 Tex. 528; 41 Tex. 86; 32 Gratt. 929; 21 W. Va. 709; 26 W. Va. 117; 6 Gratt. 712; 12 Gratt. 717; 26 W. Va. 116.
Attorney-General Alfred. Caldiodl for the State cited Whar. Ev. § 512; Step^ Ev. 103; 39 Ind. 235; 14 Kan. 105; 114 Mass. 295; 78 K Y. 586; 76 Mo.. 501; 23 Aia. 28; 62 Ala. 237; 46 X. II. 23; 78 Ind. 15; 55 Wis. 249; 18 Vt. 626; 19 Ohio 302; 60 la. 429; 7 Am. & Eng. Ency. L. 492, 496, 502; 14 Gratt, 618; 22 Gratt, 924; 25 Gratt. 905; Code (1891) c. 152, s. 20; 28 W. Va. 297; 6 Rand. 721; 1 Leigh 598; 8 Leigh 745; 20 W. Va. 681; Id. 713; 20 Gratt, 860; May. Guide 349.
In September, 1891, James Welch was convicted, in Preston county, of murder in the first degree for the murder of Celia Welch, his wife, and was sentenced to the penitentiary for life, and he has brought the case to this Court by writ of error.
The prisoner's counsel asks us to consider whether there is error in the proceedings of the Circuit Court in the following particulars: Was the jury lawful? The jury commissioners of Preston county, by order of the Circuit Court, in June, 1891, made a list of persons to serve as jurors, and also ballots of their names, which ballots were deposited in a box. See sections 3, 5, c. 116, Code 1891. Afterwards, in July, 1891, at the levy term of the County Court, the jury commissioners made another list of persons to serve as jurors, and corresponding ballots with the names of such persons thereon, and they took from the box the ballots remaining from the June list, and placed in said box in their stead the ballots containing the names of the persons on the July list, and deposited the ballots of the former or June list in another box. In September the jurors for the trial of the prisoner were of those on the list and ballots made in July.
It is contended that the commissioners had no right to withdraw from the box containing jury ballots the ballots belonging to the June list; that the only way of exhausting ballots is by destroying them, under section 11, or by their being drawn to serve, under section 12: that in effect, the June ballots should have been left in the box and mingled with ballots of the duly list, so that the jury should have come from both by the chance of drawing ballots from the box.
The court thinks there is no error under this head. The statute, in section 3, provides that "the jury commissioners of each county shall, at the levy term of the County Court thereof, annually, and at any other time when required by the Circuit Court," prepare the list of jurors, and, in section 4, provides that they shall, at the time such list is made out, place all its names on paper ballots and deposit these in a box, and in other sections provides for drawing ballots from such box for jurors to serve at each term of the Circuit Court. The statute contemplates a new list to be made each year, at the levy term of the County Court, and when made, by operation of law, that list, and the ballots of the names thereon, take the place of and destroy the former list and its ballots.
It is true ballots can not be exhausted except by destruction, as provided in section 11, or by drawing, as provided in section 12, but that is while they are in force. But when they are no longer in force, but supplanted by the new annual list and its ballots, they should be taken from the box. The statute does not expressly say that the old ballots shall be taken from the ballot box, but by requiring each year a new list and ballets under it, and by providing for custody by the clerk of the list so prepared, and for making ballots of names on "such list," and placing them in a box and drawing jurors therefrom, it evidently means one list the annual list and excludes the idea that the lawmakers intend to carry over from year to year the old list and its unexhausted ballots. If such was the design, we should ask plain language to express it. The word "annually," in section 3, has decisive force upon this matter. If the old ballots are to be earned forward from year to year, jurors on one list might be put on another, as there is no prohibition, and the same jurors would be on different ballots. Under this construction there might be a great accumulation of ballots in a number of years.
Did the court err in allowing witness Gibson to state that in his opinion, from the appearance of the depression in the bed, and from the character of the blood-stain, there had been a pool of blood in the bed? The theory of the State was that the deceased was killed by beating her on the head with a large piece of fire brick, inflicting numerous cuts and wounds, while she was lying on the bed, and that a depression was made by her head in the bed, and that in this depression was a quantity of her blood. The witness described this depression and a clot of gore in it, and was asked whether from the appearance of the depression in the bed, and the character of the stain as he saw it, in his opinion there had been a pool of blood there, and answered, "Yes."
It is the constant practice upon trials tor murder to admit evidence of the presence of blood spots upon clothing of the prisoner or the deceased, or at the scene of the tragedy. Any witness, expert or non-expert, may testify that the stains resembled blood. 7 Amer. A Eng. Enc. Law, 502; Baker's Case, 33 W. Ya. 319 (10 S. E. Pep. 639); Whart. Crim. Ev. § 777; Greenfield v. People, 85 N". Y. 75; McLain v. Com., 99 Pa. St. 86; Dillard v. State, 58 Miss. 368; People v. Gonzalez, 35 X. V. 49.
But the point of the objection is that the witness gave it as his opinion that it was blood? Opinion, though not generally admissible, is very frequently so. While the di-viding line between what is fact and what is opinion can not he very clearly defined, a witness, though not an exper", may testify to his conclusion from facts observed, when the matter to which the testimony relates can not be reproduced or described to the jury precisely as it appeared to the witness at the time. In such cases opinions are received in furtherance of justice. Yawn v. City of Ottumwa, 60 la. 429 (15 N. W. Rep. 257); Steph. Ev. 103; Whart. Ev. § 512. It is not practicable to bring into courts walls, floors, or ground stained with blood; not always practicable to produce beds or furniture. And the appearance after a lapse of time is not as it was when fresh after the tragedy to the witness.
In Greenfield v. People, 85.N. Y. 75, a witness wTas told that he was not expected to give his opinion, but, if he could, to state as a fact what certain spots were, and he stated they were blood. The admission of the evidence was held no error. It is difficult to see, as commonly understood, what was the difference between a witness's saying from mere inspection that a spot was blood and saying that in his opinion it was blood. It was treated as a statement of fact. We say a certain object is a certain thing; that a spot is an oil spot, a paint spot, or ink spot. Is the statement one of fact or opinion under the principles of evidence? Such evidence is admissible. Why not...
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