State v. Woodrow , 58 W. Va. 527 ( 1905 )

Brannon, President:

William Woodrow was indicted in Mineral county for the murder of his child, Ruth Elizabeth Woodrow, 'and was sentenced to the penitentiary for eight years upon a verdict of murder in the second decree. The deceased, was a baby of fourteen months age, and was in the arms of its mother, at her breast, when a pistol shot killed it, the ball passing through the baby’s head, and wounding the mother, according to her evidence. The accused.offeredaplea in abatement to quash the indictment on the ground that his wife had been examined before the grand jury; but the plea was rejected. On the trial the wife of the accused gave evidence at the instance of the State against her husband, over his protest.

Was the wife a competent witness againát him? Elliott on Evidence, Vol. 2, § 136, states the law thus: “When the husband or wife was the defendant in a criminal prosecution the other was, at common law, incompetent either for or .against the accused. The marriage relation, however, must be a lawful one or the rule generally has no application. And if the offence was committed by husband or wife against the other, the injured party is usually a competent witness, either for or against the accused, both at common law and under the statutes.” That late work of great practical value cites many authorities for its text. Bishop’s New Crim. Procedure, Vol. 1, § 1153, says that: “If personal violence is inflicted on the wife by the husband, she from necessity may, or if required must, testify to it in a criminal proceeding against him for the battery; and he may do the like if she beats him.” This ancient rule of the common law is stated in all the books. The sole question in this case is, Does this case come within the exception to the rule; that is, was the prisoner’s act of shooting the child a crime against the wife? It was not violence to her person. It was not a crime against her person corporeally. Such it has to be under this exception. It is true that there has been considerable difference of opinion as to what instances fall within this exception. Some cases hold that bodily violence to the wife is not the only case under the exception. For instance, cases of bigamy, and other cases, have been held to fall within the exception. The books must be resorted to for full discussion. It will be found that though cases where no actual violence constituting assault and battery upon the wife have been held to fall within the reason of the exception, yet they are cases which directly affect the legal right of the wife, rights going along with her personality or person, as an individual separated from all other persons. However, I can safely say that the great bulk of American decision is, that to come within the exception the case must be one of personal violence to the spouse. Basset v. U. S., 137 U. S. 496; Baxter v. State, 53 Am. St. R. 720; Crawford v. State, 67 Id. 829; Commonwealth v. Sapp, 29 Id. 406. And I repeat that those cases, like bigamy and others, that do not actually involve violence to the person, which are held within the exception, are cases where the wrong is to the individual particularly and directly injured by the crime for which the husband is prosecuted. Dill v. People, 41 Am. St. R. 254. But the instances mentioned — I mean the cases — not requiring actual violence to person are confined to a few states. The weight of authority is otherwise, requiring personal violence or a restraint of liberty to the wife, restraint of liberty being a wrong to her person. Basset v. U. S., 137 U. S. 496. The act must touch her person, or her personal individual right, as a person distinct and individualized from the balance of the community, to come under the exception spoken of. An enormous wrong this murder was to the mother in a moral point of view, in an emotional point of view, in a sentimental point of view; in a pathetic point of view, under emotions of the heart which move human beings, owing to the relation of mother and child. We are apt to consider this terrible crime as a greater one against the mother than to any other living human being; still, in a physical point of view, the homicide did not touch the person of the wife, but was only a crime against her as one member of the community; I mean in the eye of the law. Remember that Woodrow was tried for killing the child, not for shooting his wife. On a trial for shooting his wife, she could, under the exception stated, give evidence against her husband, and could prove, if material, not only the shooting of herself, but also the shooting of the child, as part of the res gestae; but on his trial for killing the child the fact that the one ball did violence to both mother and child, does not alter the case. The homicide of the child is one distinct crime; the shooting of the mother another distinct crime. The close connection of the two in time and circumstances does not blend the results of the ball, and make the killing of the child a personal or corporeal violence to the mother. To come under the exception the crime must be against the mother in a legal point of view. The rule of evidence as to res gestae will not admit the wife as a witness. Under that rule the question is, not the competency of the witness proving the things done or said, but whether the things themselves are proper to go before the ■ jury, even though proven by a competent witness; whereas, here it is a question whether the witness is a proper one to prove the things done or said, admitting those things to be proper evidence, if deposed to by a competent witness. Necessity, the want of another witness, is pleaded for the admission of the wife’s evidence in this case. That was the parent of the common law exception. But that necessity may often arise and call as loudly as in this case. Suppose the husband should kill a grown child in the privacy of the home, there being no other witnesses of the fact but the wife. Would this necessity admit her evidence? Suppose he would there kill the wife’s grown sister or any one else. Would she be competent? I say not. If there were other witnesses present, would she be competent? I suppose not, as the necessity would not then exist. Then, the evidence would be competent or incompetent according as there was, or was not, another witness than the wife. Though we concede that the necessity meant by law in this instance is not merely necessity for some witness, but the necessity to protect the spouse, still that would not admit the wife’s evidence in this case. It is suggested that tender age of the person injured causing incapacity to give evidence, calls for the wife’s evidence. Does it depend on age? If so, the wife’s competency or incompetency would rest on the age of the person injured. If a husband should kill a man in a field or highway, none but the wife of the murderer being present, would she be a competent witness against her husband? Surely not. Yet the cry of justice would be as loud in. that case as in the present case. The necessity would be just as great. The accidental circumstance that no eye saw the deed but that of wife and husband would, in such case, just as much create a necessity for the wife’s evidence as in this case. The ancient rule of the common law forbidding evidence of one spouse against the other stands intact today. Our Code in chapter 152, section 19, reads thus: “In any trial or examination in or before any court or officer for a felony or misdemeanor, the accused shall, at his or her own request, (but not otherwise) be a competent witness on such trial and examination. The wife or husband of the accused shall also, at the request of the accused, but not otherwise, be a competent witness on such trial and examination.” The object of this statute, in its latter clause, was to make the wife or husband a competent witness for the other, at his or her request. It is an enabling statute, because before it came neither could use the evidence of the other. It enlarges the right of the accused by giving him or her the right to introduce his or her spouse as a witness; but it does not enlarge the right of the State. Before that statute the State could not introduce the wife against the husband, or the husband against the wife; neither can it do so since that statute. That statute does not touch this case. Whether it has by the words, “but not otherwise,” abolished the exception which the common law made to the rule excluding wife and husband, that is, the exception allowing them to give evidence of a crime done by one to the other, we do not say, because it does not arise in this case. If we view this instance as within the common law exception, then we would have to decide whether the statute changed the common law exception and made the wife incompetent. It may with force be said that the statute is very broad; that it makes one, and onty one, exception to the rule of the incompetency of the spouse; that it only allows one to use the other as a witness; that the words, “but not otherwise,” are an affirmative enactment, since they actually prohibit such evidence except in one, and only one, case. Reasons which may have operated in the Legislature for branding such evidence as incompetent wholly can be suggested. In many instances the one spouse wants to get rid of the other, and may give false testimony to accomplish it. Also it would, in some cases, breed animosity and marital dissension. The Legislature may have designed to utterly exclude its use in behalf of the State. If such was its design, it could scarcely have used more apt language than those prohibitory words. They are strong prohibitory words. Therefore, we conclude that the evidence of Woodrow’s wife was improperly used against him.

Next, as to the plea in abatement. The law is thus stated in 17 Am. & Eng. Ency. L. (2 Ed.) 1283: “The court will not look behind the return of the grand jury to set aside an indictment because that body received improper evidence or the testimony of witnesses who were not competent to testify. ” Many cases there cited support this view. The Texas court said, in a case where a wife had been examined as a witness against her husband by a grand jury, “We cannot look behind the return of the grand jury and set aside an indictment because improper evidence has been received.” Dockery v. State, 34 S. W. 281. Where the accused was examined by the grand jury it was held not to invalidate the indictment. Mencheca v. State, 28 S. W. 203. Some of the cases cited by the Encyclopaedia for its text above quoted are cases where the wife was before the grand jury giving evidence against her husband. State v. Tucker, 20 Iowa 508, and State v. Boyd, (S. C.) 27 Am. Dec. 376, and State v. Dockery, just cited. There are authorities to the contrary. In the wilderness of conflicting cases a court in these days can, at best, only select that line seeming to it the better one. Where is the better reason? In the first place, my own experience as a practioner and judge tells me, that it is not usual, under practice in this State, to challenge an indictment on either the ground of want of sufficient evidence to sustain it, or even the incompetency of evidence before the grand jury. It would be a practice of great inconvenience. Very plainly a court cannot go into the question of the weight and sufficiency of the evidence to sustain the indictment, and thus review the action of the grand jui’y. That would be for the court to usurp the office of the grand jury, and also to usurp the office of the petit jury, because the court is not the judge of the weight of the evidence, but the grand jury in the first instance is, and finally the petit jury. When once an indictment is returned a true bill, it has legal force; you cannot go behind the return; it is not void, and it only remains to try its truth. Where there is some legal evidence, though light, before the grand jury, the indictment cannot be quashed. Wharton, Crim. L. § 508; State v. Logan, 1 Nev. 509; State v. Morris, 36 Iowa 272. But how is it when the question is not one of sufficiency of evidence, but where incompetent evidence has been heard by the grand jury? The indictment is not void. Often incompetent evidence is heard by grand juries, not merely incompetent matter, but incompetent witnesses. It would be an inconvenient and dangerous practice to institute preliminary investigation to ascertain what incompetent evidence was before the grand jury, how much good and how much bad evidence, and what its weight. Where there is any competent evidence before the grand jury it cannot be quashed, though there may have been some incompetent evidence of a witness, say the authorities just cited. This proposition would hardly seem to require authority. The court cannot say on what the grand jury found its indictment, or how far the incompetent evidence operated, or on what members it operated. You cannot call each member and ascertain on what evidence he formed judgment. Nest, take the case where the indictment rests alone on evidence of an incompetent witness. In such cases some authorities say that the indictment must go; but even here, why shall we not say that on the trial the state may furnish other evidence ample to sustain its indictment which was not before the grand jury? The indictment is only a charge, to be sustained by competent evidence on the trial. So the court said in State v. Dayton, 53 Am. Dec. 270. The accused can have the evidence, if incompetent, excluded on the trial. True, it is hard on him to be put to trial upon an indictment resting alone on incompetent evidence; but grand juries are not good judges of competency, and often times do not consult the. court. It would be very bad practice, endless inconvenience, to have a full preliminary trial of competence of evidence before the grand jury in many cases. How far would the practice go? Does the inconvenience to the accused justify the institution of such a practice? Are not his rights fully vindicated by his right to exclude improper evidence on the trial.

Therefore, we conclude that the plea in abatement was properly rejected.

The prisoner testified that his little boy less than three years of age often played with the pistol which killed the baby, and that on that fateful day he was playing with the pistol and discharged it and thus the baby was killed. The State, to repel this defence, to meet this evidence, gave evidence tending to show that the little boy had not capacity to fire the pistol. This evidence was that when the hammer of the pistol had been pulled back by a witness, the little boy’s finger was placed upon .the trigger, and he was asked to pull the trigger, and throw the hammer, but was unable to do so. The evidence was also that the little boy was asked to pull back the hammer, and was unable to do so. This evidence was proper to go before the jury to say whether this defence of the prisoner was true or false. It is suggested that the little boy may not have exerted his full strength to lift the hammer or pull the trigger. This may, or may not, be so. It does not appear that the child refused to try, or did not try, to do so, but the evidence fairly shows that he did make the effort. Whether he used all his strength we cannot, we need not, say, since that is a question of probability or improbability before the jury, not a question of the admissibility of the evidence. In short, its weight was for the jury.

Error is assigned because the court refused to allow a witness to prove that the prisoner told him at a point a quarter of a mile from the place of the homicide, when going for a doctor, just after leaving the spot, how the shooting took place. It does not distinctly appear that the declaration was close enough in time or place to the transaction to be part of the res gestae. Where the declaration is merely a narrative of a past occurrence, though made ever so soon after the occurrence, it ought not to be received in evidence, as it is no part of the res gestae. Corder v. Talbott, 14 W. Va. 277; Hawker v. Railroad, 15 Id. 628. The proposed evidence was merely the prisoner’s story, not on the spot of the transaction, reflecting its truth, but after he had had time to make up the story. Furthermore, it does not appear what the witness would give in evidence as to how the shooting took place. What did Woodrow say to him as to how it took place? It does not appear. This is another reason for holding that the rejection of the evidence constitutes no error. Sesler v. Coal Co., 51 W. Va. 318; Greever v. Bank, 99 Va. 547; Kay v. Glade, 47 W. Va. 468.

The defendant excepted to the refusal of an instruction saying that the jury could find a verdict of not guilty, or of involuntary manslaughter, or of manslaughter, or of murder in the second dhgree, or of murder in the first degree, with a recommendation of confinement in the penitentiary, or of murder in the first degree. This instruction commenced with a verdict of not guilty. The usual course is to commence with murder in the first degree. Perhaps the court thought that the object was to give undue prominence to the verdict of not guilty. However, we do not see that this fact would render the written instruction objectionable. But the instruction is bad, because it introduced into the case the degree of involuntary manslaughter, when no evidence whatever tended to show involuntary manslaughter. If the prisoner killed the child, the law would presume, that the act was prima facie murder in the second degree. Involuntary manslaughter had nothing to do with the case under the evidence. Many cases say that an instruction should not be given when no evidence fits it to the case, for the reason that it introduces before the jury a question not presented by the evidence. It is a wrong to the state, and often results in a defeat of justice. There is nothing in the evidence of this case to show facts entering into the legal definition of involuntary manslaughter.

Therefore, we reverse the judgment, set aside the verdict, and grant a new trial, and remand the case for such new trial.

Reversed.