State v. Hamric ( 1966 )

Bebey, Judge:

The defendant, Bonnie June Hamric, was indicted by the grand jury of the Circuit Court of Jackson County, West Virginia, at the January 1965 term on the charge of first degree murder of Glenn E. Winters. Winters was shot by the defendant on September 7, 1964, and he died on September 20, 1964 as the result of the gunshot wounds. The defendant was convicted by a petit jury of second degree murder on January 18, 1965. The trial court overruled a motion to set aside the verdict and on March 15, 1965, sentenced the defendant to confinement in the West Virginia State Prison for Women for a term of from five to eighteen years. Upon application to this Court a writ of error and supersedeas was granted on November 1, 1965 to the judgment of the Circuit Court of Jackson County of March 15, 1965.

On the night of September 7, 1964, the defendant was sitting in a small “den” in her home at 224 South Street in Ripley, Jackson County, West Virginia, watching television. Her two young children were in bed in a room on the second floor of the house. The room in which the defendant was watching television was rather small, measuring 9 x 10% feet. The only entrance to the room was a door from the dining room and there was only one window in the room. The evidence indicated the window could not be locked. The Venetian blind on the window appeared to be closed when looking at it from the door in the room but if one stood up close to the Venetian blind which was apparently tilted she could see out of the window to a limited degree. Street lights were burning in the vicinity of the home at the time of the shooting.

The defendant testified that about 9 o’clock she heard noises at the window and could hear the window being raised. She stated she became frightened and called out, “Who’s there?” and receiving no answer again said, “Who is there, go away or I will shoot.” The defendant then got a shotgun, called for her children to come downstairs and left her home with the children and went across the street to the home of her mother for the purpose of using her telephone to call her husband as the telephone in her house had been disconnected. When she arrived at her mother’s home she called the sheriff’s office and asked them to get in touch with her husband who was a deputy sheriff and have him come home immediately. Her husband arrived soon after this call about the same time the city police arrived. She returned to her home accompanied by her mother who made an examination of the outside of the house where the window to the den was located. The window was found opened several inches. Her mother closed the window but later opened it at the request of the defendant in order that her husband could see it. There is no evidence in this case that the window was ever closed again after it had been reopened by the mother on this occasion. The defendant’s husband remained at home for about one-half hour during which time he got a twelve-gauge shotgun and showed the defendant how to load it. He then left to resume his duties as a deputy sheriff. The defendant testified that she later loaded the shotgun herself but the state police testified she told them that it was left loaded by her husband and that she did not know how to load it. At the trial she was either unable to break the gun down or refused to break it down. After the children had been put back to bed again the defendant resumed watching television with the shotgun either across the arms of the chair or nearby.

The defendant stated that about 11:30 p.m., while she was still watching television, she observed or heard the Venetian blind and draperies moving and again heard the window being raised slowly and could see the television antenna lead-in wires on the window sill moving. The defendant testified that she became extremely frightened and was afraid that someone was trying to break into her home possibly to do bodily injury to her or her children or to commit a robbery, and that she arose from her chair and standing at the door of the room held the gun to a level even with her left hip and fired in the direction of the window. The shotgun charge went through the draperies and Venetian blind and continued through the window partly at the top of the bottom sash and partly through the glass just above the sash. The alignment of the hole through the drapery, blind and window indicated that the window was raised an estimated three to four or five inches at the time the shot was fired. Although the defendant did not call out to a supposed intruder on this occasion before firing the shotgun through the window, she stated she ran to the door and called for her mother who arrived from her home across the street at the scene soon thereafter. She testified that she told her mother of her reason for firing the shot and requested her to look outside and see if anyone had been hit. Although the mother made an examination of the area outside of the house near the window she did not see anyone but soon afterwards told her next door neighbor, according to this neighbor, that the defendant had shot Glenn Winters and that an ambulance had been called by him. The mother denied she had said that there was an ambulance called by Winters and stated that city police told her it was Winters who was shot. The defendant remained at her home except for a short period of time when she crossed the street to her mother’s home and called again to the sheriff’s office for her husband. Her husband arrived soon after the shooting as well as the city police and the state police. The officers stated that upon arriving at the scene they first went to the back of the house, then to where the ambulance was, and came back to the front where the defendant told them she had shot “him” and asked what they would do to her. The defendant denied talking to the city police and making this statement to them and said, not specifying to whom she made the remark, that she had shot the gun and asked what would “happen now.” An investigation made by the officers at the scene of the shooting disclosed that wood and glass were on the ground for a distance of about three feet outside the -window where the shot went through hut that there was no blood or foot marks in the vicinity or outside the window, or on the yard between the defendant’s house and an adjoining house. Blood was found on the steps of the trailer in which Glenn Winters lived at the hack of the lot on which the adjoining house was located and on the telephone book in the trailer which was lying open at the page where the number for a funeral home was listed which Winters had called to get an ambulance for himself.

The defendant’s home was the second house from the corner where a narrow street ran at a right angle with South Street, and on the back end of defendant’s lot, which ran a considerable distance backward, was located a barn and utility building. The house next to the defendant’s home was a two-story house located on the corner and occupied by a family by the name of Van Winkle. This house was owned by the deceased Glenn Winters and had been occupied by him and his former wife before their divorce in March, 1964. The lot upon which the Yan Winkle house was located extended back for a considerable distance like the defendant’s lot and had a concrete block garage on it. The area between the garage and the Yan Winkle home was level and planted in grass and the deceased lived in a trailer which was located between the Yan Winkle house and the concrete block garage. There was no obstruction between the trailer in which the deceased lived and the back of the Yan Winkle home. The window of the television room in the defendant’s house from which the shot was fired was approximately opposite the carport at the rear of the Van Winkle home.

Between the Van Winkle home and the defendant’s home was a hedge running from front to rear which apparently was a dividing line between the two lots. The hedge varied in height from around 4 to 5 feet or more. The hedge was located 10 feet from the defendant’s home and 17 feet 7 inches from the Yan Winkle home. The Yan Winkle home had a side porch and the defendant’s home had a porch on the front of it. The back of defendant’s home had a one-story kitchen and bathroom.

The charge from the shotgun struck the deceased in the left upper portion of his body, the major portion being in the area left of the center of the chest and between the collarbone and the abdominal area. Some pellets were found in his left arm. The shotgun charge which entered the deceased’s body was not close together. The pellets were scattered and four of them lodged in the heart area which eventually caused his death. Some of the pellets entered the right chest parallel with the nipple and went into the inner part of the right chest. A few of the pellets entered the neck and some penetrated both the left and right lung to a depth of several inches. However, some of the pellets entered the body only slightly and three of them were picked out by the mortician while he was embalming him. The medical testimony indicated that the shot entered the body of the deceased almost directly from the front, and although one doctor could not definitely state that the deceased’s arm was up or down when the charge hit him, another doctor testified positively that his arms were down at the time he was struck. During the trial the state attempted to show by witnesses who were familiar with shotguns how shotgun pellets would spread when fired and on each occasion this was attempted the objection of the defendant was sustained on the ground that the witnesses had not qualified as experts.

After the deceased was shot he went back to his trailer, entered it, and called a funeral home to get an ambulance. The owner of the funeral home, Edison Parsons, answered the call which he stated was received between 11:35 and 11:40 p.m. The ambulance driver testified that it was extremely warm that night and that he had been sleeping in nothing but his shorts. He was of the opinion that he arrived at the scene about four minutes after receiving the call, a quick trip made possible by Ms running a one-way street. When be arrived at the scene be found Winters crouched between two vehicles which were parked in the rear of the Van Winkle house, and when he called to him, Winters came out, and he asked him where he was standing when shot. Parsons stated that Winters pointed toward the carport at the back of the Van Winkle house and said, “Right there in my yard.” Parsons testified that he also asked him who shot him and Winters replied that he did not know. While Parsons was attempting to get Winters into the ambulance Winters said, “Edison, don’t let me die.” On the way to Charleston, some fifteen minutes after they had left Ripley Parsons stated that Winters told him, “It’s not worth it; I don’t believe I’m going to make it.” Prior to its admission, the evidence as to what Winters said to Parsons before, at the time, and after he was placed in the ambulance' was objected to by counsel for the defendant as being improper evidence and a hearing was held out of the presence of the jury. It was the contention of the prosecution that it was admissible as an exception to the hearsay rule as being a part of the res gestae and as a dying declaration. The defendant’s objection was overruled and the jury was allowed to consider this evidence. The ambulance driver delivered Winters to the emergency room of the Charleston General Hospital in Charleston where he was operated on by a chest surgeon who removed most of the pellets but was unable to remove the four in the heart area. Parsons and Harl Winters, brother of the deceased, testified that there was no wood or glass found on the body of the deceased. The doctors also testified that there was no wood or glass found on his body.

After the first operation immediately after the deceased entered the hospital, which was on the morning of September 8th, he developed breathing difficulty as a result of the chest surgery, and a tra-cheostomy was performed on September 9tb. Winters appeared to improve until September 13th at which time the doctor testified that Winters began to have heart and breathing difficulties and he told Winters that he had taken a turn for the worse and that he might die and if there was anything he wanted to say he had better say it. The doctor then took the tube from his throat, covered the incision made in the trachea and asked Winters who shot him and he replied, the woman or female. The doctor then asked him where he was standing when he was shot and he replied that he was on his side of the hedge or fence. Two brothers of the deceased were present when these statements were made. The doctor stated on cross-examination that he was not completely convinced that Winters would die and did not tell him that he was surely going to die but that he believed Winters thought he might die and realized the gravity of his situation. After these statements were made Winters’ condition improved until about September 15th at which time he became confused and thrashed about in bed. This caused a separation of the wounds which necessitated another operation on September 17th to correct the situation, after which his condition worsened and he died on September 20, 1965.

The evidence as to Winter’s statement on September 13th was objected to by counsel for the defendant, and the court, after holding a hearing on the matter out of the presence of the jury, admitted such evidence for the jury’s consideration as a dying declaration.

The state, in an apparent effort to establish a motive for the shooting, asked the deceased’s former wife if she had had a conversation with the defendant concerning her sexual relationship with the deceased, which was immediately objected to by counsel for the defendant. The objection was sustained by the court and the jury was later instructed not to consider the question in any manner. A motion for a mistrial by the defendant because of this question was overruled by the court. Another witness introduced by the state by the name of Marjorie Roub testified that she became engaged to the deceased the night before he was shot. She stated that she had visited the deceased at his trailer on several occasions and had seen the defendant looking out her back window toward the trailer which testimony was admitted in evidence over the objection of the defendant. The defendant admitted that she looked out the back window of her kitchen while she was working. Although such evidence lacks probative value, the admission thereof does not constitute error.

The defendant was asked on cross examination if she had told one Verna Snyder in January, 1964, at the Village Restaurant in Ripley that Glenn Winters was a ££son-of-a-bitch” and that “He can go to hell.” Her answer was evasive inasmuch as she stated with reference to the first part of the question, “I don’t know I used that language”, and with reference to the second part that she did not remember it but that she had said a lot of people could go to hell and that if she said it maybe she was not referring to him.

The record indicates that Verna Snyder had a heart attack the night before she was to testify and when this was announced to the trial court it instructed the jury not to consider the questions asked of the defendant, that is, if she had called the deceased a “son-of-a-bitch” and had said that he could go to hell. The defendant was also asked if there had been any trouble between her husband and the deceased, which was ruled inadmissible by the court. No written statement was ever made by the defendant during the investigation of this case although she was given an opportunity to make one.

Prior to the trial of the case a motion was made by the defendant for a change of venue which was accompanied by nine affidavits of citizens of Jackson County. The affidavits were quite similar in nature, to the effect that the defendant conld not get a fair trial in Jackson County, and were apparently based on stories published in newspapers in Jackson County with regard to the crime. The state filed an answer denying the allegations contained in the motion for a new trial and filed five affidavits therewith to the effect that although there had been considerable comment about the homicide it had gradually died out by the time the case was set for trial. The newspaper stories which were filed in connection with the motion were almost identical to the defendant’s testimony at the trial and they contained quotations from the deceased’s brother that if Glenn Winters survived, his story would be different from that of the defendant, but there was no statement in the papers as to what the story would have been. In other words, only one side of the story was printed in the newspapers and this was favorable to the defendant rather than to the prosecution.

One of the grounds urged in the motion for a new trial was based on after-discovered evidence. It appears that after the final arguments and before the jury returned its verdict, the attorney for the defendant was informed by a state trooper that the state police had some evidence that wood and glass were found on the clothing worn by the deceased at the time he was shot, and the defendant’s attorney claimed that he had no knowledge that any such evidence existed up to that time, although it had been contained in a state police report. Defendant’s attorney contended that he had been misled by the evidence and statements of the state to the effect that there was no glass or wood on the person or clothing of the deceased. Affidavits of Lieutenant Barber and Corporal Langley of the State Police filed in support of the motion for a new trial based on after-discovered evidence were to the effect that they examined the deceased’s shirt which was worn at the time he was shot and found what appeared to be fine wood particles and that upon an examination of the shirt two small particles of glass were found mixed with blood and a small wood particle, and that they had so advised both the then prosecuting attorney and the attorney who had been employed by the family of the deceased to prosecute the case. These particles were found under microscopic examination in the laboratory, and a notation of their presence was contained in a state police report. The trial court overruled the motion for a new trial on the ground of after-discovered evidence because it was' not timely requested inasmuch as the defense attorney had knowledge of such evidence before the trial was completed and before the jury returned its verdict. Also, the information with regard to the particles could have been ascertained from the state police report and obtained at the same time the motion was granted to inspect the minutes of the grand jury and furnish the defendant with copies of all autopsy reports and reports of the medical doctors with respect to the nature of the wounds and cause of death.

Fifteen assignments of error are relied upon fox-reversal. They can be consolidated in the following-manner :

(1) The Court erred in refusing to grant the defendant a change of venue; (2) in refusing to direct a verdict for the defendant and in refusing to set aside the verdict of the jury and to grant the defendant a new trial because the same was contrary to the law and evidence and also on the ground of after-discovered evidence; (3) in admitting improper evidence; (4) there was improper conduct on the part of the attorney representing the state; and, (5) the court erred in refusing to give instructions 9, 12 and 20, offered by the defendant.

The first assignment of error we will take up is that dealing with the motion for a change of venue. The affidavits and newspaper articles filed with said motion do not indicate that the publicity given to this case was inflammatory or that it would tend to influence the jury in its determinations against returning a fair and just verdict. The burden is on the defendant to prove the need for a change of venue and the existence of prejudice at the time of the trial. The granting of such motion rests in the sound discretion of the trial court. State v. Powers, 91 W.Va. 737, 113 S.E. 912; State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899; State v. Pietranton, 140 W.Va. 444, 84 S.E.2d 774; State v. Loveless, 140 W.Va. 875, 87 S.E.2d 273. Point 2 of the syllabus in the Wooldridge case clearly states the law with respect to change of venue in the following language: “To warrant a change of venue in a criminal case, there must he a showing of good cause therefor, the burden of which rests upon defendant, the only person who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist at the time application for a change of venue is made. Whether, on the showing made, a change of venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon will not he disturbed, unless it clearly appears that the discretion aforesaid has been abused.” The mere existence of widespread publicity is not, in and of itself, sufficient to require a change of venue. Bearden v. United States, 304 F.2d 532 (C.C.A. 5, 1962).

It does not appear that the trial court abused its discretion in its refusal to grant a change of venue in the case at bar. The affidavits filed by the defendant and by the state were in conflict and the newspaper articles filed in support of the motion, even though given wide publicity, would not be considered prejudicial to the defendant. Therefore, the trial court did not err in refusing to grant a change of venue in this case.

The second group of assignment of errors is the refusal of the trial court to direct a verdict for the defendant, the refusal to set aside the verdict of the jury and to grant the defendant a new trial because it is contrary to the law and evidence, and the refusal to set aside the verdict on the ground of after-discovered evidence. These will be discussed together.

The contention that the trial court should have directed a verdict for the defendant is without merit. The evidence in this case is uncontradicted that the defendant discharged a shotgun through the window of her home and as a result thereof killed G-lenn Winters. In such cases the law is clear that where a deadly weapon is used in a homicide there is a presumption of second degree murder and the defendant has the burden of proving that it was justified and the state has the burden of proving that such killing was deliberate and premeditated and raising it to first degree murder, all of which are jury questions. 96 A.L.R.2d, 1436; State v. Welch, 36 W.Va. 690, 15 S.E. 419; State v. Hertzog, 55 W.Va. 74, 46 S.E. 792. Then, too, it appears from the record that no motion was made for a directed verdict during the trial of this case. Therefore, this assignment of error can not be interposed at this time and was waived. State v. Zitzelsberger, 129 W.Va. 229, 39 S.E.2d 835; State v. Boggs, 129 W.Va. 603, 42 S.E.2d 1.

The trial court was also justified under the facts of the ease at bar in refusing to set aside the verdict of the jury and to grant the defendant a new trial on the ground that the verdict was contrary to the law and evidence. The evidence relative to the shooting which resulted in the death of Glenn Winters clearly presents a question for jury determination. It shows that on the night of September 7, 1964, the defendant was sitting in a small room in her home watching television. It was an extremely hot night although, according to defendant’s testimony, the window in the small room in which she was watching television was closed and covered by a Yenetian blind and drapes. She testified that about 9 o’clock in the evening she heard the window being slowly raised and called out, “Who is there, go away, or I will shoot.” She did not shoot but stated that she got a gun and went over to her mother’s home across the street, got her mother to look around the premises outside the house and called her husband. Street lights were burning in the vicinity of the home and her mother found no one outside the house when she inspected it. Her husband, a deputy sheriff, remained at his home for a period of about one-half hour, at which time he gave the defendant a shotgun and either showed her how to load it or loaded it himself. Her mother, while at the defendant’s house, closed the window in the television room hut raised the window again at the request of the defendant so that her husband could see the window in a raised position when he came to the house. There is no evidence that the window was ever lowered after the first instance when it was left raised by the mother. However, according to the testimony of the defendant, about 11:30 she heard the window being raised again and observed movements of the antenna wire in the window. Although she saw no one and made no outcry as she had done on the first occasion she grabbed the shotgun which was nearby and fired through the window which was open, making a small hole in the drapes and the bottom sash of the window. Scattered pellets from the charge struck the deceased in the chest and left arm, four pellets penetrating the heart area, some being merely superficial and later picked out by the undertaker. There was no blood or footprints outside the window but blood was found near the deceased’s trailer and on the telephone book he used to call the ambulance. A city policeman testified that after the shooting the defendant told him that she had shot “him” and asked what they would do to her. The defendant denied making this statement but said that she had shot the gun and asked what will happen now. After the defendant went to her mother’s house and talked with her mother, an episode occurred, as testified to by a neighbor, in which the mother told the neighbor some time later that the defendant had shot the deceased and an ambulance was at the scene. Her mother stated that an officer told her the defendant shot Winters and she, in effect, later denied that she said an ambulance was at the scene. There was evidence that one could see out the window through which the shot was fired by standing in a certain position. The jury could consider all of this evidence in arriving at its verdict. In the fact that defendant fired the gun without warning and although she denied saying she shot the deceased, there is evidence for the jury to weigh and consider that she did see whom she was shooting. If the jury believed from the evidence adduced during the trial of this case, which it no doubt did, that the defendant fired the shotgun charge through the window and struck the deceased with knowledge of this fact and he was not attempting to enter the defendant’s house through the window and was in his own yard at the time, the shooting of the deceased was neither excusable nor justified, which the jury so found by its verdict. In fact, such evidence would even warrant the returning of a verdict of first degree murder. State v. Cain, 20 W.Va. 679; State v. Tucker, 52 W.Va. 420, 44 S.E. 427; State v. Hertzog, supra; State v. McCauley, 130 W.Va. 401, 43 S.E.2d 454; State v. Dean, 134 W. Va. 257, 58 S.E.2d 860.

The jury had the right to infer malice on the part of the defendant because the homicide was committed with a deadly weapon. State v. Bowles, 117 W.Va. 217, 185 S.E. 205; State v. Jones, 128 W.Va. 496, 37 S.E.2d 103. It is true the defendant relied on self-defense and was not required to retreat because she was in her own home. However, even if she believed that she was in danger of great bodily harm and was attempting to protect herself from apparent danger, she assumed the risk in so doing. State v. De Board, 119 W.Va. 396, 194 S.E. 349; State v. Toler, 129 W. Va. 575, 41 S.E.2d 850.

Another assignment of error in this category is the refusal of the trial court to set aside the verdict on the ground of after-discovered evidence. This assignment is based on information the attorney for the defendant obtained from a state policeman after the final arguments and while the jury was out deliberating the case but before the verdict was returned. No motion was made to the trial court until after the jury had returned its verdict and the motion made to set aside the verdict. The state had introduced evidence that there was no glass or wood found on the body or clothing of the deceased. A laboratory microscopic examination of the shirt which the deceased was wearing at the time he was shot was made by the state police. The discovery of the pulverized or fine particles of glass and small particles of wood was obtained by a microscopic examination in the laboratory. It was contained in a state police report and the evidence indicates that the then prosecuting attorney and the special prosecutor were informed and advised of this fact. It is the duty of the regular prosecuting attorney or the special prosecuting attorney to prosecute the offense for which an accused is charged but it is also their duty to see that an accused is afforded a fair and impartial trial. 4 M.J., Commonwealth’s and State’s Attorney, §4; State v. Hively, 103 W.Va. 237, 136 S.E. 862; State v. Moose, 110 W.Va. 476, 158 S.E. 715. If a prosecuting attorney or special prosecuting attorney intentionally withholds information as to material evidence which would affect the guilt or innocence of the accused he is prosecuting it would not only be reprehensible but would constitute reversible error. Canon 5, Code of Professional Ethics, 128 W.Va. xxi; State v. Moose, supra. However, the defendant could have obtained this information before the trial by requesting a copy of the state police report containing this information. This could have been done by either requesting the prosecuting attorney to furnish a copy of the report or by moving the court for such information, along with other information which the court granted upon request, such as the minutes of the grand jury and lists of the witnesses to be called by the prosecuting attorney and autopsy and medical reports. Then, too, this information indicated that the deceased was some distance away from the window when he was shot because the laboratory examination revealed that only fine particles of glass and wood were present. Had he been close to the window the glass and wood chunks of considerable size which fell about three feet from it would no doubt have been imbedded in his body with the charge from the shot. It would therefore appear that this evidence was not such as would produce an opposite result at a second trial on the merits and it would appear that the only effect it could have would be to discredit witnesses who testified that there was no glass or wood found on the clothing of the deceased. Since it was necessary for a laboratory microscopic examination to be made to ascertain the presence of glass and wood, the pieces perhaps would not have been visible to the naked eye.

A new trial on the ground of after-discovered or newly discovered evidence is very seldom granted and the circumstances must be unusual or special. State v. Spradley, 140 W.Va. 314, 84 S.E.2d 156; State v. Farley, 143 W.Va. 445, 104 S.E.2d 265.

The law applicable to the granting of a new trial on the ground of after-discovered evidence is clearly stated in the single syllabus of State v. Farley, supra, which reads as follows: “ ‘A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfac-factorily explained. (2) It must appear from facts stated in his affidavit that plaintiff was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side.’ Point 1, syllabus, Halstead v. Horton, 38 W.Va. 727.” Point 2, syllabus, State v. Spradley, 140 W. Va. 314.

It can readily be seen tbat tbe motion for a new trial on tbe ground of newly discovered evidence under tbe circumstances in tbis case does not meet tbe requirements on several grounds. It was discovered before tbe verdict was returned and motion should bave been promptly made at tbat time. Tbe information could bave been ascertained by tbe use of due diligence before or during tbe trial and because of tbe nature of tbe evidence tbe materiality is very questionable, and tbe evidence would not bave affected tbe result. The only use of said evidence would appear to be to discredit or impeach witnesses but it was of questionable value even for tbat. If any of tbe essential requirements as set out in tbe syllabus point quoted above are not satisfactorily complied with, a new trial will never be granted on such grounds. State v. Farley, supra.

Tbe next group of assignment of errors relates to tbe admission of improper evidence and improper conduct on tbe part of tbe attorney representing tbe state.

It is tbe contention of tbe defendant tbat it was reversible error to introduce statements made by tbe deceased to tbe ambulance driver at tbe time be arrived at tbe scene and talked with tbe deceased and during tbe time tbe deceased was on tbe way to tbe hospital and statements made to a doctor while be was in tbe hospital. Tbe ambulance driver arrived on tbe scene within a few minutes after be was called by Winters and be asked Winters where be was standing when be was shot and tbe deceased pointed toward the edge of tbe carport behind tbe Van Winkle borne and said, ‘ ‘ Right there in my yard. ’ ’ Tbis evidence would appear to be admissible under tbe doctrine of res gestae. See Lawrence v. Nelson, 145 W.Va. 134, 113 S.E.2d 241. When tbe ambulance driver was placing the deceased in tbe ambulance be slumped and said, “Edison, don’t let me die.” On tbe way to Charleston tbe deceased said, “I don’t believe I am going to make it, I don’t believe it is worth it. ’ ’ With these foundations it would appear that the statement as to where he was shot would qualify as a dying declaration. See 1 Wharton’s Criminal Evidence, §297 et seq.

The second occasion of a dying declaration was when the deceased was in the hospital in Charleston and had taken a turn for the worse and the doctor told him he might not survive and asked him if he had anything he wished to say. The tube was removed from his throat and the doctor covered the opening with his finger and the deceased made a statement that a woman or female shot him and that he was on his side of the fence or hedge at the time he was shot. The part of the statement that a woman shot him is immaterial because there is no question in this case but that the defendant fired the shot that killed Winters.

The trial court heard all of the evidence with regard to each of these statements out of the hearing of the jury and ruled that such statements were admissible and then the jury was allowed to hear the evidence. These statements with regard to where the deceased was located at the time he was shot are admissible as res gestae or dying declarations, or both, in the first instance and as dying declarations in the second. 1 Wharton’s Criminal Evidence, §297 et seq.; State v. Meek, 107 W.Va. 324, 148 S.E. 208; State v. Graham, 94 W.Va. 67, 117 S.E. 699.

The court heard the evidence with regard to the dying declarations out of the hearing of the jury and ruled on the admissibility before allowing the jury to consider it, in accordance with the “orthodox” rule, adhered to in West Virginia. State v. Meek, supra; State v. Graham, supra. The rule is the same with regard to confessions. State v. Vance, 146 W. Va. 925, 124 S.E.2d 252, and State v. Fortner, decided by this Court June 7,1966. In the Fortner case the first point of the syllabus deals with this question and reads as follows: “It is the mandatory duty of a trial court, whether requested or not, to hear the evidence and determine in the first instance, out of the presence of the jury, the voluntariness of an oral or written confession by an accused person prior to admitting the same into evidence, and the failure to observe this procedure constitutes reversible error.”

Notwithstanding the fact that the trial court complied with the rules covering the admissibility of the evidence with regard to dying declarations and confessions the defendant offered instruction number 21 which was given by the court stating that the jury was the judge of the weight, credibility and admissiblity of such evidence. The orthodox rule adhered to in this state is that the jury is only concerned with the weight and credibility of such evidence. The court is required to determine its admissibility before such evidence is ever submitted to the jury, all of which was done in the instant case.

It is now the contention of the defendant that it was error to give instruction number 21 offered by said defendant due to the fact that the verdict of the jury did not, after such instruction, contain a statement that the jury had found that the evidence was admissible. For this, defendant relies on the recent United States Supreme Court case of Jackson v. Denno, 378 U.S. 368, 12 L.Ed.2d 908, 84 Supreme Court 1774, 1 A.L.R.3rd, 1205, as authority for such contention. The Denno case which dealt with a confession was a five to four decision with many written opinions and it is difficult to analyze and to ascertain the exact holding for many reasons. However, it is not difficult to state that it is not applicable for the proposition raised in the case presented here. In the Denno case the court did not rule on the admissibility of the evidence but allowed the jury to have the final decision. In the case at bar the trial court made the final decision as to the admissibility of such evidence and in effect inadvertently allowed the jury to consider the admissibility also, all of which was favorable to the defendant; and although the jury should not have been permitted to consider the admissibility of such evidence the defendant can not take advantage of any error for which she was responsible. The First National Bank of Peterstown v. Hansbarger, 129 W.Va. 418, 40 S.E.2d 822. See State v. Clark, 64 W.Va. 625, 63 S.E. 402 and State v. Meek, supra.

The alleged improper conduct on the part of the attorney representing the state relates to the matter involved in the newly discovered evidence inasmuch as this attorney had introduced evidence that there was no glass or wood on the clothing of the deceased but it is charged that he knew that the laboratory report showed that there was glass and wood on the deceased’s clothing. This matter has been heretofore covered and discussed and although questionable would not constitute reversible error. The other improper conduct alleged to have been done by the attorney for the state was the repeated attempts to have improper evidence with regard to the spread of a shot introduced during the trial of the case, a matter which was discussed in connection with the evidence and does not constitute error.

It is also the contention of the defendant that the attorney representing the state who had the right to open and close did not make a fair opening in the closing arguments in violation of Canon 22 of the Code of Ethics, Code of Professional Ethics, 128 W. Va. xxviii.

We have carefully examined the closing arguments made on behalf of both the state and the defendant and find no reversible error in connection therewith. The attorney representing the state could have made a fuller opening argument which should always be done in both criminal and civil cases in order not to mislead or withhold any material points supported by the evidence and relied on to support the state’s or plaintiff’s position. However, the able closing argument made by tbe defendant’s attorney anticipated all of the argument contained in the closing argument made by the attorney representing the state.

The trial court sustained objections to much of the other evidence defendant complains of or its admission was not made a point of error in the petition for appeal. Several questions relative to whether defendant had a telephone and why it had been disconnected and for what reason were admitted into evidence and their admission was made a point of error on appeal on the ground that they had no probative value and created suspicion in the minds of the jury. In view of the testimony by defendant about traveling across the street to use her mother’s telephone, these would be logical questions, and although the answers produced no worthwhile information we cannot see but that the questions themselves were proper ones.

The objections were not only sustained but the jury was instructed not to consider the question asked the divorced wife of the deceased relative to the sexual relations between the defendant and the deceased. This evidence was apparently an attempt to establish motive which is not necessary in a case of this kind. 1 Wharton’s Criminal Law and Procedure, §64; 9 M.J., Homicide, §83.

The questions asked the defendant on cross-examination as to whether or not she had called the deceased a “son-of-a-bitch” and said he could “go to hell” were answered in an evasive manner, and after it was explained to the trial court that the witness to whom these statements were made or in whose presence they were made had suffered a heart attack and had been taken to a hospital the night before she was to testify, the trial court instructed the jury not to consider such evidence. It is the contention of the defendant that the questions asked these witnesses amounted to reversible error and she relies on the case of State v. Corbin, 117 W.Va. 241, 186 S.E. 179, as authority for such contention. The Corbin case is not authority for such contention. In the Corbin case not only certain questions were asked but they were allowed to be answered and the court overruled objections to such evidence and allowed tlie jury to consider it. The objections to the questions in the case before us were sustained and the jury instructed not to consider them. In the Corbin case witnesses were used and their testimony allowed to be considered by the jury which amounted to building an inference on an inference. The objection to such evidence should have been sustained and the jury instructed not to consider, as was done in the instant case.

It is the contention of the defendant that the trial court erred in giving instruction number 5 offered by the state and refusing instruction number 9 offered by the defendant. Both of these instructions are instructions on reasonable doubt and in effect amounted to the same thing and it has been held that where there are two instructions in form and effect embodying the same legal principle and amounting to the same thing it is not reversible error to give one and refuse the other. State v. Rice, 83 W.Va. 409, 98 S.E. 432. Then, too, the defendant’s instruction number 5 and number 8 which were given also dealt with reasonable doubt. It was also contended by the defendant that the trial court erred in refusing to give defendant’s instructions 12 and 20. Instruction 12 offered by the defendant is adequately covered by instruction 11 which better fits the evidence in the case at bar. These instructions dealt with the weight and credibility to be given to defendant’s testimony, and instruction 12 contained a statement to the effect that there was no evidence by any witness to contradict the testimony of the defendant on any material fact. The testimony of the defendant was contradicted on material facts by several of the state’s witnesses. Therefore, it was not error to refuse defendant’s instruction number 12. Defendant’s instruction 20 which was refused by the court related to evidence in connection with the theory of the defendant and the weight to be given such evidence, but this instruction was adequtely covered by defendant’s instruction number 18 which, was given by the court and the refusal to give instruction number 20 therefore did not constitute error.

Although the majority of the Court were of the opinion that the bills of exceptions had been timely obtained, it should be pointed out that the final order of March 15, 1965, sentencing the defendant to the penitentiary only suspended the execution of the judgment by a stay of execution thereof for a period of ninety days and did not extend the time within which the defendant’s bills of exception could be tendered, signed and certified. The order merely stated that the defendant ‘ ‘ * * * having moved the Court for a stay of execution of her sentence in order to perfect such appeal the Court doth order that a stay of execution be granted unto the defendant for a period of ninety days in order to perfect her appeal and to get her bills of exception signed by the Court, * * * ”. The bills of exceptions or certificates in lieu thereof were filed on June 12, 1965, more than sixty days after the final order and after the adjournment of the January term of court. A bill of exception or certificate in lieu thereof must be tendered to the judge and signed by him within sixty days of the adjournment of the term in which the final order was entered or within sixty days from the date the order is entered if entered in vacation unless the time is specifically extended for the obtaining of such bill of exception or certificate in lieu thereof. Code, 56-6-35 and Code, 56-6-36. It has been held many times by this Court that a stay of execution for a certain period of time and the extension of time within which to obtain bills of exception or certificates in lieu thereof to be filed are separate and distinct procedures and the extension of time for one does not extend the time to obtain the other. State v. Varner, 131 W.Va. 459, 48 S.E.2d 171. It was specifically stated in the case of State v. Workman, 141 W.Va. 482, 91 S.E.2d 329, at page 487, that a stay of execution of the sentence or judgment is not equivalent to an extension of time to obtain a bill of exception. An order of a trial court based on a motion for a stay of execution of a judgment, which is sustained by giving as a reason “in order that petitioner may perfect its appeal”, will not be construed as extending the time within which such litigant may secure the signing of a bill of exception, or, in lieu thereof, a certificate of the evidence. State v. Consumers’ Gas and Oil Company, et al., 130 W.Va. 755, 45 S.E.2d 923. This is a jurisdictional matter and even though the point is not raised in any manner the court should take notice of such defect on its own motion. Crookshank v. Hall, 139 W.Va. 355, 80 S.E.2d 330. This matter has been discussed in the comparatively recent cases of Montgomery v. Montgomery, 147 W.Va. 449, 128 S.E.2d 480 and Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80. In the Montgomery case, which was decided in 1962, it was stated: “It has been repeatedly held by this Court in cases where it is necessary to obtain a bill of exception in an appeal to this Court that a stay or suspension of the execution of a judgment does not extend the time in which to obtain a bill of exception.” The statements in the Rose case were to the same effect, with authorities in connection therewith cited wherein it was stated that a stay of execution of the final judgment does not extend the time in which to obtain a bill of exception or to prepare a case for appeal. Por a proper order extending the time in which to have a bill of exception tendered and signed by the trial court see Hogg’s Pleading and Forms, 4th Ed., §670. If the signing of bills of exceptions or certificates of evidence in lieu thereof were not timely done this Court could not consider most of the assignments of error relied on in the appeal of this case. However, notwithstanding this situation, we have carefully reviewed all of the assignments of error and do not find that any of them constitute reversible error, as indicated in this opinion.

For the reasons stated herein, the judgment of the Circuit Court of Jackson County is affirmed.

Affirmed.