State v. Wilson

• Decision Date: 07 June 1960
• Docket Number: No. 11098,11098
• Citation: 114 S.E.2d 465,145 W.Va. 261
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. William Dallas WILSON.

Page 465

114 S.E.2d 465

145 W.Va. 261

STATE of West Virginia v. William Dallas WILSON.

No. 11098.

Supreme Court of Appeals of West Virginia.

Submitted April 13, 1960.

Decided June 7, 1960.

Syllabus by the Court

1. The giving of an instruction, couched in the language of the statute defining murder in the first degree, is not error if warranted by the evidence.

2. Where the evidence is uncontradicted that a homicide was committed in a manner defined by statute to be murder in the first degree, it is not error to limit the jury to a finding of either murder in the first degree or not guilty.

3. Instructions unsupported by the evidence are properly refused.

L. W. Blankenship, Carl A. McComas, Huntington, for plaintiff in error.

W. W. Barron, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., for defendant in error.

BROWNING, President.

The defendant, William Dallas Wilson, sixteen years of age, was convicted of murder in the first degree in the Court of Common Pleas of Cabell County, and sentenced to life imprisonment, and an application for a writ of error and supersedeas was refused by the Circuit Court of Cabell County on August 31, 1959. This Court granted a writ of error and supersedeas on November 16, 1959. Errors assigned in this Court concern the giving of State's Instructions No. 1, which set forth the statutory definition of murder in the first degree, and No. 2, which instructed the jury that they could return one of two verdicts, murder in the first degree or not guilty, and the refusal of Defendant's Instructions Nos. 5, 6, 8 and 10, which would have presented to the jury the defendant's theory that, in killing the deceased, he was defending his mother against imminent and impending danger of death or bodily harm at the hands of the deceased, and would have permitted the jury to return a verdict of second degree murder, voluntary manslaughter or involuntary manslaughter, in addition to the two verdicts enumerated in State's Instruction No. 2.

The facts are substantially as follows: Deceased, Homer Buskirk, and defendant's mother were married in March, 1956, and lived together until a final separation in July, 1958. During the course of the marriage there were numerous instances of mistreatment by the deceased of his wife and the defendant, and his brothers and sister. In October, 1958, defendant's mother obtained employment at the Pony Tavern in Huntington, West Virginia. Deceased was killed Sunday evening, October 28, 1958, at approximately 8:00 P.M. The events leading up to the killing occurred on Friday, Saturday and Sunday when deceased would sit in the tavern drinking beer while defendant's mother was on duty, and would threaten 'to get her', curse and use abusive language toward her. On Friday night, defendant's mother became frightened and directed one of her sons, Ronnie Joe, to have defendant come in his car to take her home. Defendant did so and, because deceased was in a position to observe her movements, defendant's mother requested that she be let out at the home of a friend where she remained for a couple of hours before defendant picked her up and took her home. On Saturday, when defendant's mother went to work, deceased was present in the tavern, and, when she walked past his booth, lunged at her and threatened to kill her, and again cursed and abused her and told her to tell her sons that he would get them. On the same night, deceased struck Ronnie Joe in the mouth without provocation. Someone later called the police, but no arrests were made. On Sunday, deceased again was present in the tavern in an intoxicated condition, and, when defendant's mother served him beer, he grabbed her by the arm and again cursed and abused her. Defendant, his brother, Ronnie Joe, and one Gary Steele, subsequently came in to obtain the key to defendant's mother's home. Steele, who boarded with defendant's mother, was cursed and abused by the deceased at this time, as he had been previously cursed and abused on Saturday. The trio left the tavern and went to defendant's mother's home and discussed the situation with another brother. The three then went to Catlettsburg, Kentucky, the defendant driving. Defendant left Ronnie Joe and Steele at a restaurant, and went to a friend's home where he borrowed a .22 caliber rifle. Defendant states that he then went to a drug store where he purchased shells, picked up Ronnie Joe and Steele, and the three returned to Huntington, defendant riding in the back seat, and parked across the street, which was 40' wide, from the tavern. Steele was sent in to call deceased out. Deceased replied he would be out when he finished his beer, which he did, and fifteen or twenty minutes after having been called by Steele, deceased and two friends walked outside. Deceased walked past the front of the tavern, Ronnie Joe started the car, and deceased turned to move across the street, when defendant fired. The bullet struck deceased in the heart and he died shortly thereafter. As heretofore stated, defendant was convicted of murder in the first degree, and, on this writ of error,...