State v. Waldron

75 S.E. 558, 71 W. Va. 1

• Court: West Virginia Supreme Court
• Decided: June 13, 1912
• Status: Published

Opinions

MilleR, Judge:

On an indictment for the murder of Ben Tate defendant was acquitted of murder in the first degree, but found guilty of murder in the second degree, and the judgment below was that he be confined in the penitentiary for the period of ten years.

The homicide, admitted, occurred on the night of January — , 1910, a Sunday night, in a brothel in Keystone, McDowell County. Defendant was a deputy United States Marshal, who at the request of White, town sergeant, had gone with him to this house to make an arrest for alleged illicit sales of intoxicating liquors. While waiting the return of White from the Mayor’s office with warrants, 'defendant, who before White left to secure the warrants, had been invited on the outside of the house by Tate and his companion Gillespie, patrons of the house, and had declined, was on their coming out of the room of the mistress of this house, enticed by them into an adjoining room, where, almost instantly, the door being shut by one of them, the difficulty occurred, resulting not only in the death of Tate, hut of Gillespie also, from pistol shots fired by defendant.

Defendant was the only living witness as to what actually took place in the room where the homicide occurred. He admitted the killing, but on his trial relied on self defense.

The controversy here is reduced to a few questions relating to the rejection of certain evidence proposed by the prisoner, and to the giving and rejecting of certain instructions to the jury.

First, as to the rejected evidence. On the trial, the prisoner, to establish his theory of self defense, was permitted to and did prove by the testimony of White that after he and White entered the house, and asked for the girl Blackburn, reported to have sold the liquor to Walter Waldron and Trivitts, Madge Murray, the mistress of the house, came out of her room and inquired of them, “Why do you all have me charged with selling whiskey' and beer to-day ?” and that another woman, Jennie Belcher, interposing said: “Make them show you a United States warrant before you go”; that the Murray woman then walked to a bed in the room, and to where, as he supposed, Tate was -sitting on a chair, and sat down on his lap, and said to him: “ 'Sweetheart, you are not going to let them take me, are you ?’ or something like that; and he said: — 'Ho, not as long as we are here’, and he raised up and pushed her off of his lap.” This witness also says, that when Tate got up he'walked around to the foot of the bed and stopped, and that witness said to him, we won’t have any trouble, we will get a warrant, that he would go down and see Hale, the mayor, and get him up there and pull the whole house; that Waldron and he then walked out in the dance hall, where he wrote a note, proposing to send Waldron for the warrants, but after writing it concluded to go himself, as he thought he could find the mayor quicker. Continuing this witness says: “Then Mr. Tate walked around on this side, and Gillespie on this side (indicating), and touched him (Waldron) on the shoulder, and said he wanted to see him on the outside. He told him that if they wanted to see him, see him in here, and ‘L don’t see what business you have on the outside.’ Gillespie spoke up and said they wanted to see him on the outside.” Waldron himself, corroborates White entirely as to what occurred up to the time White left the house to go for the warrants.

As to what occurred immediately afterwards, Waldron further swears, and no fact or witness materially contradicts him: “As soon as Mr. White left they all went over to Madge’s room and left me alone in the dance hall. I was standing there and in a short time two fellows came out of Madge’s room and come up to me and the big fellow says: ‘Coroe over in the room where you can sit down; its no use standing up’, and pointed to the room right out across the little hall. There was a light in there and I just walked over, followed him. ITe walked right on in. I was behind him. I heard the door .shut, and just turned my head that way (indicating) and the smallest one had his back to the door and this big fellow struck me. ******* He knocked me down, I guess, the time he struck me. They both jumped on me and I caught on to the bed the best I could on it, then pulled myself up the best I could, trying to get my gun out all the time, shoved myself away from them,” when he shot him, thinking he was in danger of being killed, or having great bodily harm done to him, his only reason for shooting.

In connection with this testimony and as further tending to show Tate and Gillespie were the aggressors, and establish his theory of self defense, the prisoner proposed, but was not permitted to prove, by two witnesses, Baxter and Hermanson, that but a few moments before the homicide, both Tate and Gillespie, in connection with two or three other men, were in a violent state of mind towards Hermanson; that but a few moments before White and Waldron entered the house Tate and Gillespie, as Baxter thought from their actions, acting under the influence of liquor, jumped on Hermanson, in aid of their lewd mistresses, and without other cause, beat him, while Hermanson was there waiting for two other women to come down stairs and pay him some money he claimed they owed him.

The attorney general and associate counsel justify the action of the court in excluding this evidence, not on the ground that it might not have influenced the verdict of the jury, but on the grounds, (a) that -evidence of a single act of violence is not admissible to establish the turbulent and violent character of deceased; (b) that the conduct of Tate and Gillespie towards Her-manson was unknown to Waldron, and if for no other was inadmissible for this reason; and, (c) because the conduct of Tate and Gillespie constituted no part of the res gestae, had no bearing upon or connection with the homicide, that there was no causal or even explanatory relation between that recent occurrence and the homicide.

In homicide cases, where the general character of the deceased for turbulence and violence is involved, the general rule, established by the weight of authority, no doubt is, that evidence of isolated facts or specific acts forming no part of the res gestae, and in no way connected with defendant, will not be received in evidence. 21 Cyc. 910, and cases cited in notes. But when self defense is relied on, and whereas in this case, there is evidence tending to show the deceased was the aggressor, the dangerous character of deceased may be shown by the facts and circumstances attending the homicide, and so connected with it as to constitute a part of the res gestae. 21 Cyc. 909; 1 Wigmore on Ev., section 363; State v. Morrison, 49 W. Va. 210, 218; Harrison v. Com., 79 Ara. 374. Moreover, Mr. Wigmore, 1 Wigmore on Ev. section 198, citing numerous cases, says: “When the turbulent character of the deceased, in a prosecution for homicide, is relevant (under the principle of § 63, ante), there is no substantial reason against evidencing the character by particular instances of violent or quarrelsome conduct. Such instances may be very significant; their number can be controlled by the trial Court’s discretion; and the prohibitory considerations applicable to an accused’s character, (ante § 194) have here little or no force.” And whether in such cases as the one at bar there is necessity of showing defendant’s knowledge of deceased’s character, this writer, in § 63, referred to, says: “The reason for the hesitation, once observable in many Courts, in recognizing this sort of evidence, and the source of much confusion upon the subject, was the frequent failure to distinguish this use of the deceased’s character from another use, perfectly well-settled, but subject to a peculiar limitation not here necessary, — the use of communicated character to show the fact and the reasonableness of the defendant’s apprehension of violence {post, § 246). As the purpose there is to show defendant’s state of mind, it is obvious that the deceased’s character, as affecting the defendant’s apprehensions, must have become known to him; i. e. proof of the character must indispensably; be accompanied by proof of its communication to the defendant; else it is irrelevant. In the present use, this additional element of. communication is unnecessary; for the question is what the deceased probably did, not what the defendant probably thought the deceased was going to do. The inquiry is one of objective occurrence, not of subjective belief. This distinction, however, was at first not always appreciated by the Courts, nor clearly laid before them by counsel. Hence, a ruling excluding-the present use of the evidence cannot always be taken as a repudiation of the present principle, but is often merely a ruling that the offer 'does not satisfy the doctrine of communicated character; and such a Court may in future recognize the present doctrine if the distinction is pressed upon it. Apart from a few such precedents, the principle is now generally accepted.” This writer, same volume, section 248, substantially repudiates the doctrine of some decisions,, that particular acts of violence if known to defendant ought not to be received in evidence", on the question of defendant’s belief of impending danger. “The fact,” says he, “that the circumstance creating apprehension is a single act or series of acts, instead of a general character, does not necessarily destroy its capacity to create apprehension. bFor does its distance in time from the moment' of the affray necessarily have that effect. * * * * * * Certainly all analogies of the law (apart from the. common sense of the situation) favor such evidence; for if particular vicious acts of an animal are relevant to show that its owner was warned of its viciousness (post, § 251), and if particular-misconduct of an employee is relevant to show that his employer was warned of his incompetency (post, § 250), then particular deeds of unscrupulous violence may well be deemed relevant to show an apprehension of violence from such a person. The true solution is to exercise a discretion, and to admit such facts when common sense tells us that they could legitimately affect a defendant’s apprehensions. The state of the law in more recent times has come on the whole to favor the admissibility of such facts.”

Wo agree with this writer that reason, if not the weight of judicial decision, favors the admissibility in evidence of such facts, when the question is the knowledge or belief of the defendant in the dangerous character of 'deceased, and the necessity for acting in self defense. And on parity of reasoning where self defense is relied on and there is some evidence that deceased was the aggressor, and the question is what the deceased probably did do, his quo animo, as evidenced by his recent acts of turbulence even towards a third person, so connected in time, place and circumstance with the homicide, as to likely characterize the deceased’s conduct towards the defendant ought, oh the principles stated by this writer in said section 63, to be received in evidence, for the question then is what deceased probably did, not what defendant probably thought deceased was going to do.

The application of this distinction, so often overlooked, and so clearly stated by Mr. Wigmore, we think well recognized by other writers, and in some leading cases, now to be referred to. In 6 Ency. of Ev. 783, the rule we approve is stated thus: “The violent conduct of the deceased shortly preceding the homicide, though in the absence of and unknown to the accused, is admissible to show his condition of mind and characterize his conduct during the fatal ‘difficulty and by some courts is regarded as part of the res gestaeWe do not think the rule of res gestae should be so limited in its scope as counsel for the State would limit it. "We find the rule applicable in homicide cases thus comprehensively stated in 21 Cyc. 924: “The res gestae in cases of homicide are the surrounding facts of the transaction, explanatory of the act, showing motive for acting, pr standing in a causal relation to the crime. The res gestae consist of circumstances or declarations made admissible in evidence by reason of their connection with the particular fact under investigation, and the test is, whether the fact or circumstance put in evidence is so connected with the main fact under consideration as to illustrate its character, to further its object, or to form in conjunction with it one continuous transaction. They are proper to be submitted to the jury provided they can be established by competent means, sanctioned by the law, and afford any fair presumption or inference as to the question in dispute.”

In People v. Lilly, 38 Mich. 270, the deceased’s behaviour on the way to the scene of the homicide was held admissible to corroborate the evidence as to his violent conduct during the conflict. In State v. Beird, 118 Iowa 474, evidence that the deceased on the night of the homicide, while intoxicated, and going from one saloon to another shortly preceding the homicide, made an assault upon a third person, was held improperly excluded, on the ground that it indicated “a state of mind continuing up to the time of the affray, and which would be likely, in ordinary human experience, to lead to aggression and combativeness at that time.” In the Virginia case of Muscoe v. Commonwealth, 87 Va. 460, 464, the trial court admitted a witness to testify that “just before sundown” upon the evening of the day of the homicide, as he was parting with him the person said: “Buster, I feel hot; I feel like I could shoot a man and make him jump so high before he touches the ground” (indicating the height by his hand), and “Don't tell me to take care of myself. Tell the people that I pass by to take care of themselves.” The appellate court responding to the point of error made against the admissibility of this evidence, said: “We are of opinion that this testimony was properly admitted. Coming, as it did, almost immediately before the killing, it shed light upon the condition of the prisoner. It may not be admissible strictly as evidence of intention or of threats, but it certainly shows that the prisoner was in a reckless frame of mind and ready to use the weapon with which he was armed upon none or the most trifling provocation.” Citing Whart. Cr. Ev., § 756; Hopkins v. Com., 50 Pa. St. 9, and State v. Burke, 71 Ala. 377. In State v. McIver, (N. C.) 34 S. E. 439, the court said: “The prisoner also proposed to ask the witness if the deceased did not exhibit this violent and vicious temper torvards another of his hands that morning, and beat him unmercifully. This was also excluded. In this we think there was error.” In our own case of State v. Abbott, 8 W. Va. 741, it is said: “It is a great mistake to suppose that the res gestae, in the legal sense, is, in a case of murder, confined to the fact of thrusting the knife into the body, and thereby depriving of life. The res gestae is the murder, and the murder is made up of the homicide and the intent with which it was committed. Actions, therefore, which seem to demonstrate the quo animo are a part of the res gestae, and words which are a part of these actions are admissible.” A very pertinent case is Sneed v. Territory, 16 Okla. 641, in which the court holds, that where, on the trial of an indictment for murder; the defendant claimed to have shot the deceased in self-defense and when the latter was intoxicated, and it appeared from the evidence that there was no eye witness to the affray other than the defendant, that the parties were on friendly terms np to the very day of the difficulty, and that, without provocation, one committed an uncalled for and violent attack upon the other, that it was error to exclude testimony that on the evening of the homicide the deceased had a difficulty with another person, which grew out of an invitation on the part of the deceased to drink with him, and that when his invitation was refused, deceased attempted to shoot such person.

Many other cases cited in support of this rule, state and federal, fully support our view. In our case of State v. Sheppard, 49 W. Va. 594, it is said: “All acts and conduct of the deceased previous to the fatal encounter may be shown in evidence, which form a part of the res gestae, or which in any manner tend to shed light upon the question of motive or malice, or of legal provocation, or upon the question whether the defendant committed the homicide.” And in Maher v. People, 81 Am. Dec. 781, 789, it is said: “Ho other cause being shown for the assault, the proposed evidence, if given, could have left no reasonable doubt that it was, in fact, committed in consequence of the alleged provocation, whether sufficient or not; and all the facts constituting the provocation, or which led to the assault, being thus closely connected, and following each other in quick succession, and the assault itself in which they resulted, constituted together but one entire transaction. The circumstances which, in fact, led to the assault, were a part of the res gestae, which the jury were entitled to have before them to show what was the real nature of the act, the quo animo, state of mind, and intention with which it was done.” In State v. Bright, (S. C.) 71 S. E. 821, the first point of the syllabus is: “Acts of decedent done immediately before the homicide to show his mental attitude are admissible on the issue of self-defense.” And in McAnear v. State (Tex.), 67 S. W. 117-119, that Court says: “We know of no rule of law authorizing the exclusion of any evidence that makes manifest the guilt of a defendant, or that tends in the remotest degree to exculpate him.”

It seems quite unnatural and contrary to human experience that a public officer,' circumstanced as Waldron was, and so far as the evidence discloses, with no apparent motive other than self defense, or in the heat of passion due to some sudden affray, should have shot down two men. If the former and justifiable, no crime was committed; if the latter, the crime was manslaughter, not murder in the second degree.

On the record now presented we think the evidence of Her-manson and Baxter, excluded, should have been admitted, and that the court below erred in rejecting it, entitling the prisoner to a new trial.

The point is made, that as the prisoner admitted the killing, and as the law presumes all murder to be murder in the second degree, putting the burden of showing justifiable homicide on defendant, if the excluded evidence had been admitted, in connection with all the other evidence, the presumption of guilt would not have been overcome thereby. In answer we may-say that there is always a presumption of malice from the use of a deadly weapon; but this rule is applicable only when nothing is offered in explanation, such as self defense and the like. 2 Chamber]ayne Mod. Law of Ev., section 1155, citing among other cases, in note, our case of State v. Clark, 51 W. Va. 457. An'd “the fact that the alleged self-defense was effected by the use of a greatly superior weapon is by no means conclusive of malice.” People v. Barry, 31 Cal. 357, cited in same note. In Perkins v. State, (Ga.) 52 S E. 17, it is held that if the accused offers evidence explanatory of the homicide admitted, no presumption of malice arises. The latter proposition, however, according to our cases, would not preclude an instruction on the presumption of murder, the homicide being proven.

Finally, as to the instructions. Exceptions were taken to the giving of all of the State’s instructions, and to the rejection of certain of the defendant’s instructions. We have considered all these exceptions; but find little merit in any of them. Most of them propound legal principles, applicable to the evidence,many times ruled upon, and we will not undertake to discuss any of them except State’s instructions numbered one and three, given, and defendant’s' instruction numbered five, rejected.

The first criticism of State’s instructions numbered one and three, is 'that the proposition common to both, that homicide proved, or admitted, is presumed to be murder in the second degree, is inapplicable where self defense is relied on, or where the facts and circumstances shown in evidence tend to justify the killing, or reduce the oifense to one of lower degree. There is no merit in this criticism. The point is fully covered by prior decisions, which need only be referred to. State v. Gravely, 66 W. Va. 375; State v. Taylor, 57 W. Va. 228; State v. Clifford, 59 W. Va. 1.

An additional criticism of State’s instruction number three is, that it tells the jury that the law of self defense is the law of necessity, not limiting it, as in State’s instruction number twelve, given, to apparent necessity. But this instruction does not stop with this general declaration of principle. It precedes a' statement of the law of self defense, which tells the jury that unless the prisoner acted on the honest belief that it was then and there necessary to take the life of deceased in order to save his own life, or 'free himself from some great bodily harm, he was not justified therein, and that if the jury believed that defendant, though previously assaulted, used more force than was reasonably necessary to repel the assault, or shot or continued to shoot after the necessity fqr so doing had ceased, they could not acquit him. We see nothing in this statement of the law prejudicial to defendant. The instruction as a whole practically limits the law of necessity to apparent necessity, and read in connection with State’s instruction number twelve the jury could not possibly have been mislead by it.

Lastly as to defendant’s instruction number five, rejected. This instruction reads: “The Court instructs the jury that where there is more than one assailant, the slayer has the right to act upon the hostile demonstration of either one or all of them, .and to kill either one or both of them, if it reasonably appears to him that they are present for the purpose and acting together to take his life or do him some serious bodily injury.”

This instruction -was approved in Carson v. State (Tex.), 136 Am. St. Rep. 981, and the proposition approved in Wharton on Horn. 396, and cases cited by him, and we think states a correct legal proposition. But we do not think the prisoner was prejudiced by its rejection, because the same proposition was covered substantially and in terms more particularly appropriate to the concrete ease, in defendant’s instruction number one, given.

For the error in rejecting the evidence of Hermanson and Baxter we are of opinion to reverse the judgment below and .grant the prisoner a new trial, as already ordered.

Reversed and New Trial Graniedi.