State v. Whitt
| Decision Date | 15 April 1924 |
| Docket Number | 4853. |
| Citation | 122 S.E. 742,96 W.Va. 268 |
| Parties | STATE v. WHITT. |
| Court | West Virginia Supreme Court |
Submitted March 25, 1924.
Syllabus by the Court.
In a trial for homicide, until assailed by the defense, the deceased's reputation as a quiet and law-abiding citizen is presumed to have been good, and the state may not make it a subject of primary proof. Where such evidence is admitted over objection it cannot be said that defendant is not prejudiced, his guilt of the offense charged not clearly appearing from the record.
Jurors are not presumed to be familiar with the constituent elements of the various degrees of homicide, and if defendant so requests, he is entitled to an instruction defining them.
Where the facts and circumstances of a homicide case are such that they may, in the minds of the jurors, rebut a mere inference of malice on the part of the accused, an abstract instruction to the effect that it is not necessary that malice should exist in the heart of the accused toward deceased, or any particular person, and that deliberation, willfulness, and malice may be inferred from the use of a deadly weapon, and which omits to mention any of the various circumstances tending to rebut such inference, is erroneous.
Abstract instructions not based upon the evidence are improper.
It is not error to refuse an instruction which charges that if "one single fact" inconsistent with the guilt of defendant is proved, it is sufficient to raise a reasonable doubt, and that the verdict should therefore be "not guilty."
It is not necessary for a peace officer, in arresting one who commits a crime in his presence. to declare, in so many words, that such is his purpose; his intention may be sufficiently evidenced by his efforts to catch and hold the offender, and, in so doing, the officer is entitled to whatever protection the law affords him in such a proceeding.
A sheriff and his deputies are peace officers or conservators of the peace; as such they may, without a warrant, arrest one who commits, in their presence, a breach of the peace, or a misdemeanor which cannot be stopped or redressed without immediate arrest.
Error to Circuit Court, Wyoming County.
G. P Whitt was convicted of murder in the second degree, and he brings error. Reversed, verdict set aside, and new trial awarded.
John M McGrath, of Princeton, for plaintiff in error.
E. T England, Atty. Gen., and R. Dennis Steed, Asst. Atty. Gen for the State.
MEREDITH, P.
Defendant obtained a writ of error to a judgment of the circuit court of Wyoming county, wherein he was sentenced to seven years' imprisonment upon the verdict of a jury finding him guilty of murder in the second degree.
We will make no comment upon the evidence further than is necessary to dicuss the errors assigned. It appears that defendant, and his son, Alva Whitt, were deputy sheriffs of the county, and lived at Bud, a station on the line of the Virginian Railway. The deceased, John Bishop, a nephew of defendant, lived there, as did also one Dominick Chrisendella, a railroad section foreman. Chrisendella had been in the habit of taking his coal supply from the coal trains as they passed there. On January 7, 1922, defendant saw him throwing coal from one of the passing railway cars, and arrested him for larceny. Defendant had no warrant. About this time, deceased, John Bishop, came along and made some objection to Chrisendella's arrest and search without a warrant. Defendant told Bishop that if he did not desist he would arrest him and take him along to Mullens, where he was intending to take Chrisendella. Defendant claims that Bishop made some threat to the effect that defendant could not take Chrisendella, and, to prevent him, Bishop started to his home after his revolver; whereupon defendant called to his son, Alva, to stop or catch Bishop. Alva ran after Bishop and caught him as he was about to enter his yard gate. A scuffle ensued between them, Bishop finally working his way to his porch, where he caught hold of one of the porch pillars. About this time some one called to defendant to hurry. Some witnesses say it was Bishop's wife, but this she denies; at any rate, it appears that some one called from the direction of Bishop's home, and that it was a woman's voice, asking the defendant to hurry there. He ran to where the two were scuffling, and caught hold of Bishop. He had his revolver in one hand. He says that, in the scuffle, Bishop made a lurch or jerk and caused the revolver to discharge. Bishop was hit in a vital spot, and died from the wound some seven hours later. Defendant claims the killing was accidental.
The first error assigned is that the state, over the objection of defendant, was allowed to prove, in chief, the general reputation of the deceased as that of a quiet, peaceable and law-abiding citizen, when his reputation therefor had not been assailed. This was error. State v. Arrington, 88 W.Va. 152, 106 S.E. 445; Dock v. Commonwealth, 21 Grat. (Va.) 909. It is conceded by the Attorney General that this was error, but it is urged that, under the circumstances, the defendant was not prejudiced, and that we should not reverse the case on that ground. We cannot accede to that view. This is not such a clear case that we can say that defendant ought to have been convicted, regardless of error. Upon the evidence, the jury could have acquitted him. Reasonable minds might have come to entirely different conclusions upon the evidence adduced. We cannot say what influence this improper evidence had upon the jury, nor need we speculate upon that question. It is sufficient to say that the defendant is entitled to a trial, according to the rules of law.
The remaining assignments of error relate to the instructions. At the instance of the state, the court instructed the jury that, under the indictment, if warranted by the facts and circumstances in the case, they might return any one of five verdicts: (1) Murder in the first degree; (2) murder in the second degree; (3) voluntary manslaughter; (4) involuntary manslaughter; and (5) not guilty; and then told the jury what punishment, under the several verdicts, might be inflicted. As this instruction did not tell the jury the constituent elements of the several offenses, defendant offered his instruction No. 1, which in addition to stating the same matters as were embodied in the instruction given for the state, defined the constituent elements of each of the four several offenses. The court refused to give defendant's instruction on the ground that it was covered by that given for the state. No instruction was given defining the elements of the several offenses. The jurors were not presumed to know, but they had a right to know, and the defendant had a right to have them know, what the constituent elements of the several offenses were. Unless they did know, they could not intelligently determine what their verdict should be. State v. Turner, 29 S.C. 34, 6 S.E. 891, 13 Am. St. Rep. 706; 13 R. C. L. p. 706. Defendant's instruction No. 1 should have been given.
This instruction is taken from State v. Welch, 36 W.Va 690, 15 S.E. 419. It was criticized in that case by Judge Brannon, but not held reversible error. In State v. Best, 91 W.Va. 559, 113 S.E. 919, upon an indictment for malicious shooting, an instruction telling the jury that, to convict one of malicious shooting, it is not necessary that malice should exist in the heart of the accused against the wounded person, but that, if the accused was guilty of shooting another with a deadly weapon, the intent and malice might be inferred from the act, was held to be error because it ignored facts and circumstances shown in the evidence, which tended to rebut any presumption that might be inferred from the bare fact of the shooting with a deadly weapon. We think the criticism of the instruction, in that case, is applicable to the one given here. It wholly ignores the facts and circumstances shown in this case; it is abstract; it ought not to have...
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