The State Of West Va. v. Williams.

• Court: West Virginia Supreme Court
• Writing for the Court: MOORE.
• Citation: The State Of West Va. v. Williams., 14 W.Va. 851 (W. Va. 1878)
• Decision Date: 09 November 1878
• Parties: The State of West Virginia v. Williams.

14 W.Va. 851

The State of West Virginia

v.Williams.

Supreme Court of Appeals of West Virginia.

Decided November 9, 1878.

1. The act of the Legislature, chapter 129, Acts 1872-3, which provides for electing a special judge by the members of the bar to hold the general term of a circuit court, where from any cause the judge fails to appear, or if present cannot preside, is eonstitutional. Whether that act authorizes the election, by the members of the bar, of a special judge to hold a special term of said court, when the judge having called the special term fails to attend; and if so, whether such act as applies to a special term is constitutional or not, the court is equally divided.

2. Upon a motion for a new trial on the ground of newly discovered testimony, the testimony of the newly discovered witness should be substantially set out in the affidavit of the witness as it can be testified to in the court before the iuiy, or r, satisfactory excuse be shown for the absence of the affidavit.

3. A new trial will not be granted, to enable a party asking it to discredit a witness who testified against the prisoner on a former trial.

4. Where a convict has undergone the punishment or imprisonment in the penitentiaiy under his sentence, the statute restores to him competency as a witness.

5. A convict being at liberty after the length of time for which he was sentenced to the penitentiary has elapsed, it is to be presumed he has suffered the punishment.

G. The indictment in this case is sufficient in law.

7. In a criminal case a new trial will not be granted for matter that is a principal cause of challenge to a juror, which existed before he was elected and sworn as such juror, but which was unknown to the prisoner at the time and until after the verdict, and which could not have been discovered, before the juror was sworn, by the exercise of ordinary diligence; unless it appears from the whole case that the prisoner suffered injustice from the fact that said juror served in the case.

8. A case in which the evidence was held to be plainly insufficient to sustain the verdict of the jury.

Sarah Jane Williams was convicted of the murder of Jemima Green and sentenced to confinement in the penitentiary for life by the circuit court of Braxton county, on the 20th day of March, 1867. From this judgment of the circuit court a writ of error was awarded said Williams to this Court.

Joseph M. McWhorter, Esq., as special judge presided at the trial of the case in the court below, and rendered the judgment appealed from.

Moore, Judge, furnishes the following statement of the case:

At a circuit court held for the county of Braxton Sarah Jane Williams was indicted, March 20, 1876, for the murder of Jemima Green. She was tried for this offense at a special term of said court called by-the judge by virtue of chap. 15, Acts 1872-3, and holden by a special judge appointed by a majority of the attorneys-at-law present in said court and practicing therein, pursuant to chapter 129, Acts 1872-3, p. 442, the regular judge having failed to attend. The jury on the 29th December gave a verdict against her, and endorsed its verdict on the back of the indictment as follows: "We, the jury, find the defendant, Sarah Jane Williams, guilty of murder in the first degree, and we do further find that she be punished by confinement in the penitenitary.

"Hugh N. McLaughlin."

Which verdict was entered of record in that form. On the 13th day of January, 1877, the court overruled her motion to set aside the verdict and grant her a new trial; and judgment was rendered on the verdict at another term of the court, March 20, 1877, "that the said Sarah Jane Williams be imprisoned in the penitentiary of this State for life," &c.

To the rulings of the court she filed a bill of exceptions, which was signed and sealed by the special judge, which bill, sets forth the evidence offered in support of her motion, being ex parte affidavits, and counter affidavits offered by the State,

The court certified the facts proven on the trial as follows:

"That on the night of the 201 h day of May, 1875, Jemima Green was murdered in Braxton county, on Otter creek, about five miles from Sutton, and seven or eight miles from prisoner's residence; that at the time of the murder a prosecution was pending in the county court of Braxton county, against David Wine, son of the prisoner, for burglary, in which the deceased was a witness for the State, and that the court at which said burglary charge was to have been examined, did not sit until after the murder; that the prisoner declared on three occasions that the deceased should never appear as a witness against her said son in said prossecution; and that the prisoner stated to a witness, that on one occasion she had followed deceased, and that if she had caught up to her she would have killed her; that on the night of the murder, from half to one hour after dark, prisoner was seen passing through the main street of Sutton in the direction of Otter creek and the residence of deceased; that between eleven and twelve o'clock of the same night, prisoner was seen returning through Sutton, her horse appearing much jaded and fatigued; that the moon fulled the next morning and the night was bright moonlight; that her son David Wine was seen by certain boys at a late hour of the same night passing up Elk river towards Sutton and his house from the direction of the mouth of Otter creek; that on the next morning prisoner was found at her home, with her clothes and shoes on, appearantly sound asleep, though it was proven by the same witness, Sarah Davis, a niece of deceased, that she had seen prisoner in bed in that condition on former occasions when her child was sick, and that at the time in question she had a child about three months old; that on said morning she asked same witness where her son Dave had been that night, and witness replying that he had stayed at witness's house that night, prisoner replied: "Don't lie; somebody has been riding my horse." That on the evening of the night of the murder prisoner appeared to be fearing that her said son and one Schoolraft and witness, Sarah Davis, meditated running off, and that prisoner visited witness's house on said evening after dark looking for her son and found him in bed there, and remarked that she feared they would run off; and that her said son was found early next morning in bed at the same place, there being but one room in the house, and that witness slept very soundly and could not say that Wine stayed there all night; that on two occasions since the murder prisoner stated that Ellis Perkins, Lewis Perkins, Steve Perkins and Lyde Clutter were present at the murder; that Lewis Perkins and Lyde Clutter were on the hill above the house of deceased and heard the cry of murder, and Lewis Perkins exclaimed: 'My God ! they are killing her;' and Lewis Perkins and Lyde Clutter went down to the house and found Ellis Perkins and Steve Perkins carrying deceased out of her house, and Steve appearing alarmed dropped his end of the deceased, and Ellis said, 'By God, I'm not scared;' and stamped deceased in the breast, when Lewis exclaimed: "My God, Ellis you have killed her, I heard her insides crush;" but prisoner did not state that she was present at the murder, or saw or heard these things. That the prisoner on another occasion since the murder stated the same details of the murder just given, stating in addition that Lewis Perkins had told her so. That on another occasion prisoner being told by a witness that it looked like the Perkins's were about to put her and Dave, her son, into the murder, she replied: "If I suffer, others will have to suffer. Lige Perkins is the ground chunk of the whole thing." That prisoner attended deceased in childbirth, which occurred about two weeks before the murder, and furnished her some scraps of bread, and that deceased was suffering for food, and that prisoner furnished her some provisions after her child's birth; that some of the declarations of prisoner, that deceased should never appear as a witness against her son, were made after said childbirth."

The facts above certified are based on evidence other than that of Luther Cremeans; and his evidence was that while in jail on said charge of murder, David Wine made a confession to Marshall T. Frame, prosecuting attorney, and that prisoner thereafter came to the jail, and she and her son were talking about the murder of Jemima Green, and she said to her son: "What's that you've been telling Marsh Frame?" Dave replied: "nothing." Prisoner said: "Yes you have; you told Frame that I compelled you to go down there that night, and you know I did not; for you went voluntarily; you have been telling Frame that you were there and that I was there, and it makes it no better on you, and worse on me, and you know you promised that night not to tell that. If you had not struck her with the revolver, those marks would not have been on her, and if you had got up behind me and come away with me, as I wanted you to do, those boys would not have seen you that night, "

It was proven that Cremeans had been sentenced to the penitentiary from Kanawha county for ten (10) years for murder, and after serving six (6) years was pardoned and was afterwards confined in Braxton county jail for horse-stealing; and that he had been acquitted.

It was proven that Lyde Clutter was not at the murder. It was proven before the introduction of Cremeans that there were marks of blows on the face and head of the deceased.

The foregoing were all the material facts proven in the trial, and this certificate is signed and.scaled by the court and made a part of the record in this cause.

A writ of error was awarded at the June term, 1877, of this Court. The record sent up from the circuit court being defective, and confounded with the proceedings of another cause against other persons necessitated the Court to direct a certiorari to bring up a correct...