State v. West, No. 12754

• Court: Supreme Court of West Virginia
• Writing for the Court: BERRY
• Citation: 168 S.E.2d 716,153 W.Va. 325
• Parties: STATE of West Virginia v. Charles Edward WEST.
• Decision Date: 15 July 1969
• Docket Number: No. 12754

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168 S.E.2d 716 153 W.Va. 325 STATE of West Virginia
v.
Charles Edward WEST. No. 12754. Supreme Court of Appeals of West Virginia. Submitted May 7, 1969.
Decided July 15, 1969.

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Syllabus by the Court

1. 'The fact that on a criminal trial the indictment, having written on it a former verdict of guilty, is taken by the jury to its room, no objection having been made to its doing so, is not ground for new trial.' Point 2, syllabus, State v. Stover, 64 W.Va. 668, 63 S.E. 315.

2. Where a former verdict written on an indictment is covered at the direction of the court in such a manner as to conceal it, there is no error in allowing the jury to take the indictment to the jury room.

3. 'The jury is the trier of the facts and in performing that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses.' Syllabus point 2, State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850.

4. 'If a new trial depends upon the weight of testimony or inferences from it, the jury are exclusively and almost uncontrollably the judges.' Point 1, syllabus, State v. Winans, 100 W.Va. 418, 130 S.E. 607.

5. The general rule is that in an indictment for murder, a principal in the second degree may be convicted of the lesser offense of voluntary manslaughter.

[153 W.Va. 326] Sprouse, McIntyre & Louderback, James B. McIntyre, Charleston, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Leo Catsonis, Asst. Atty. Gen., Charleston, for defendant in error.

BERRY, Judge:

The defendant, Charles Edward West, was indicted jointly with Stephen Arthur Balazs, John Larry Bronaugh, Dianna Carroll West, Marshall Herbert West, Jr. and Patricia Ann West for the murder of Michael Windom at the January, 1967 term of the Intermediate Court of Kanawha County, West Virginia, and was found guilty of voluntary manslaughter by the petit jury on June 9, 1967. The trial court refused to set aside the verdict and grant the defendant a new trial, after which a petition for a writ of error and supersedeas was denied by the Circuit Court of Kanawha County, West Virginia, on January 22, 1968. Upon application to this Court a writ of error and supersedeas were granted to the judgment of the Circuit Court of January 22, 1968, which was submitted for decision upon arguments and briefs at the April Special 1969 Docket.

John Bronaugh, a joint defendant, had previously been tried in the Intermediate Court and convicted of second degree murder. This verdict by the petit jury was written on the face of the indictment and signed by the foreman of the jury. A motion was made on behalf of the defendant, West, at the beginning of the trial in the case at bar to either dismiss the indictment or continue the case because of the above writing on the indictment on the ground that the notation pertaining to the conviction of Bronaugh contained on the face of the indictment amounted to a change or amendment of said indictment. The trial court overruled the motion and directed the clerk to place white heavy bond paper over the face of the indictment so the verdict in the prior trial would be obliterated.

[153 W.Va. 327] This case arose out of an altercation between two groups of young people which occurred after the Charleston High School-

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Stonewall Jackson football game on November 11, 1966 in which Michael Windom was stabbed to death. One of the groups will be designated as the 'Windom' group, and the other as the 'West' group. It appears that neither the Windom nor the West group knew each other before the altercation. The two groups had been sitting in opposite stands at the football game and did not see each other until after the game. The evidence introduced by the state and by the defendant is conflicting with regard to what transpired in the events leading up to and including the death of Michael Windom.

On the evening of the game the deceased, Michael Windom, age 19, accompanied by his brother Larry, age 18, and another boy, Anthony Clendenin, age 17, left the Windom home on the west side of Charleston to attend the game. Inasmuch as the testimony as to ages in the record was given six months after the death of Michael Windom, the occurrence of a birthday could have altered the ages by a year. They stopped on Camden Drive at Connie Norman's house where they were to meet two girls, Sarah Adkins and Connie Norman, and then proceeded to the vicinity of Laidley Field and parked their car on Thompson Street off Jackson Street. At half-time of the game they were joined by Gary Windom, age 17, another brother of the deceased, who had been working at the Big Star Market during the first half of the game and who brought with him a box cutter which he had been using in connection with his work. The West group who lived on the east side of Charleston had also gone to the game in an automobile driven by Dianna West who parked her car on Maxwell Street facing Jackson Street in front of a house located at 507 Maxwell Street.

At the game Herbert Lee Wittard, age 16, apparently joined the West group but did not take part in the altercation following the game and appears to be a disinterested witness. He testified that John L. Bronaugh exhibited[153 W.Va. 328] a switch-blade knife at the game, that the defendant Charles West exhibited a blackjack, Marshall West exhibited after the game a steel roller bearing about one and one-half by three quarters of an inch in size and that the defendant Charles West made the statement that there was going to be a fight after the game.

It appears that both the West and Windom groups left a short time before the end of the game. Dianna West had left earlier to start the motor of the car before the rest of the group got to it. Both groups left the stadium at the Elizabeth Street entrance with the West group in front of the Windom group. According to the evidence of the state the first communication between the groups occurred as they were crossing the railway tracks when the West group began shouting at the Windom group and one of the West group told the Windom group to 'go to hell'. The deceased Michael Windom suggested that they wait until the West group left. The Windom group stopped and waited until the West group proceeded into a passageway between the railway tracks and Maxwell Street, which was out of sight of the Windom group.

When the Windom group entered the passageway they found the West group lined up against the fence near an adjoining house. They attempted to go past but the West group surrounded them. The defendant grabbed one of the Windom boys and attempted to hit Michael Windom with a blackjack but was prevented from doing so by Gary Windom. The defendant and Gary Windom then started fighting each other after which about three of the West group had the deceased Michael Windom on the ground when two or three men who were passing by managed to break up the fight. The testimony of the witnesses who broke up the fight is not very satisfactory as to who the aggressors were as they did not know the parties, having never seen them before this altercation and being indefinite as to the actions of the parties. However, they did testify that

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