State v. Gravely ( 1909 )

Miller, President:

Upon an indictment in the criminal court of Raleigh county, charging defendant with the murder of one Lilly, the jury found him guilty of murder in the second degree, and' the judgment thereon of the criminal court, that he be imprisoned in the penitentiary for twelve years, being affirmed on appeal by the circuit court, he has brought the case here for review on writ of error.

The sufficiency of the indictment, tested by demurrer thereto in the court below, is challenged here. The objection to it is, that it is in two counts, and that the first count does not, as required by section 8, article 2, of the Constitution, com elude “Against the peace and dignity of the State.” The theory is that because there is interpolated therein, after the words charging the crime, and before the conclusion, “Against the peace and dignity of the State,” the charge that defendant had been before sentenced in the United States, to a period of confinement in the penitentiary for the murder of one Laws, in Surry county, North Carolina, the latter charge constitutes a separate and distinct count to which the conclusion, “Against the peace and dignity of the state,” alone applied. The point is without merit.

The next error assigned is the giving of instructions number one and two for the state. The first is: “The Court further instructs the jury that where a homicide is proved, the presumption is that it is murder in the second degree, and the burden is on the state of showing that it is murder in the first degree; and upon the accused of showing that it was without malice, and is, therefore, only manslaughter, or that he acted lawfully and is therefore not guilty, and in arriving at a verdict in this case as to the degree of guilt, if any, the jury should take into consideration all the evidence, both that for the state and defense.” This instruction was held good in Hill v. Commonwealth, 2 Grat. 595, and State v. Cain, 20 W. Va. 709; but it is said to be inapplicable; that the presumption of murder in the second degree, propounded by the instruction, is not true of every homicide, regardless of the facts and surrounding circumstances; that such presumption arises only in eases where the killing is shown to have been with malice aforethought : and that such presumption does not arise where the evidence, as it is claimed is the fact in this case, shows defendant guilty of no higher offense than voluntary manslaughter. For this proposition, State v. Beatty, 51 W. Va. 233, seventh point of the syllabus is relied on, namely, that “Where the killing, although intentional, is done in passion, in heat of blood, upon sudden provocation, by gross indignity, out of tenderness for the frailty of human nature, the law reduces the offense to manslaughter;” also, Lewis v. Commonwealth, 78 Va. 732, holding that, “malice is presumed from the fact of the killing unaccompanied with circumstances of extenuation; and the burden of disproving malice is on the accused.” We do not think the instruction amenable to the criticism. Section 4200, Code 1906, makes all murder, except murder by poison, lying in wait, etc., murder in the second degree. The presumption intended by the instruction is the presumption of law arising from! the construction given this statute. State v. Dodds, 54 W. Va. 287, 296. It was not intended to assert, and the instruction does not in terms assert, that all murder, regardless of the facts and circumstances of the crime, is presumed to be murder in the second degree. On the contrary, it properly submitted to the jury the question of the want of malice necessary to reduce the offense to manslaughter, and told the jury also that if defendant acted lawfully he might be found not guilty of any crime.

The objection to instruction number two is more serious. It is as follows: “The court further instructs the jury that it cannot be inferred from the bare a.ct of striking, without any dangerous weapon, that the aggressor intended to kill, and unless there be a plain manifestation of a felonious intent, no assault, however violent, without a deadly yeapon, will justify killing the assailant under the plea of necessity; and although the jury may believe from the evidence in this case, that the deceased, Bud Lilly, and A. J. Shumate, or either of them, did in fact assault the prisoner, Robert Gravely, by striking him with the fist, yet the prisoner would not be justified in shooting and killing the said Bud Lilly, unless there was a plain manifestation of a felonious intent upon the part of the deceased, Bud Lilly, and A. J-. Shumate, or either of them, to kill the said Robert Gravely, oar to inflict upon him, some serious bodily harmi;

“'And in passing upon the case as to the immanency of the danger which threatened the prisoner, and the necessity of the killing in the first instance the prisoner is the judge; viewing it from the prisoners stand point at the time, but he acts at his periL as the jury must pass upon his action in the premises/’ The vice of this instruction is not in the conclusion in its first paragraph, but in the first proposition thereof, by which the latter is limited, namely, “that it cannot be inferred from the bare act of striking, without any dangerous weapon, that the aggressor intended to kill, and unless there be a plain manifestation of a felonious intent, no assault, however violent, 'without a deadly weapon, will justify killing the assailant.” We think that although the conclusion of the instruction contains the words, “or to inflict upon him somfe serious bodily harm,” the first clause of the instruction was calculated to mislead and deceive the jury, and to induce the belief that defendant was justified in killing his assailant in self defense, the assault being without a dangerous weapon, unless there was a plain manifestation of a felonious intent to kill him, “however violent” the assault may have been. This is not the law. It is conceded that when one is assaulted he may repel force with force, and may even take the life of his assailant, if it is plainly manifest that he is in danger of sustaining serious bodily harm. By section 4208, Code 1906, if one by any means cause another bodily injury with intent to maim, disfigure, disable, or kill, he is guilty of a felony. The evidence in this case shows and tends to show: That Bud Lilly, the deceased, was, at the time the shot was fired, assisting Shumate, the principal assailant, and had then on his person a pistol, which he had taken from the bed in the room where the homicide occurred; that defendant had not assaulted, or attempted to assault, either of his assailants; that both Lilly and Shumate were larger and stronger men than himself, and that at the time he fired the fatal shot, Shumate was striking him in the face with his fist, and the blood from his wound was running into bis eyes and blinding him. Wharton on Horn. (3rd Ed.) 500, says, that “if an assault was made by a strong man upon a weak one, and the battery extended so far beyond the provocation as to amount to a felony, or as to endanger the life of the person assaulted, he might be justified in using a deadly weapon in resistance. So, one is justified in using a deadly weapon to defend himself from a public whipping, by one greatly his superior physically. And where a man is assaulted by a mob of angry and excited .men, some of whom are armed, and he kills one of them with a deadly weapon, an instruction is erroneous which limits his right to defend himself to assaults made by the deceased only, leaving out of consideration his right to use a weapon if necessary to protect himself from impending harm at the hands of the mob.” In Davis v. The People, 88 Ill. 350, one of the cases cited by Wharton, the syllabus is: “It is not true, as a matter of law, that, where one menaces, and threatens to strike, and does strike another with his hand or fist, the latter is not, in any case, justified in using a deadly weapon upon the assailant. Whether the use of such weapon is justified, must depend upon the fact whether the party was in imminent peril of receiving great bodily harm, or had reasonable ground to so believe, and that such act was necessary to prevent the same.” In Davis v. State. 152 Ind. 34 (71 Am. St. Rep. 322, 325), the Indiana court says, referring to instructions: “These instructions inform the jury that a person assaulted by another, who has no weapon in his hands, or the appearance thereof, is not justified in using a deadly weapon in defense of his person. If that is the law, then in every conceivable case of a violent attack upon one by another, no matter what the circumstances may be, no matter what the disparity between the ages and physical strength of the two may be, the assaulted party must stand and take his chances of being knocked down and stamped into a jelly, or of being choked to death before he can lawfully use a weapon in ids 'defense. Though the appearance and circumstances of the assault were such as to induce the reasonable belief to be honestly entertained by the defendant that his life was in danger, or that he Was in danger of great bodily harm from the assault, he could not lawfully use a deadly weapon to repel such assault, unless the assailant had a weapon in his bands, or the appearance thereof, no matter how many he had about his person. This is not the law. * * * *But, we have a case where an. assailant was convicted of manslaughter, where he used nothing but his hands, thereby choking his victim to death, and that Judgment was affirmed in this court.” Citing Shields v. State, 149 Ind. 395. In Rogers v. State, 60 Ark. 76 (46 Am. St. Rep. 154, 158), that court says: “One who intentionally commits a great bodily injury upon the person of another may or may not be guilty of a felony, depending upon the circumstances; but, as such an injury may, under some circumstances, be committed, and still the offender not be guilty of a felony, it is therefore not accurate to define ‘great bodily injury’ as ‘a felony committed on the person.’ What constitutes a great bodily injury; and whether the circumstances in any case are such as to justify one in believing that such an injury is about to be committed upon him, and in defending himself against it, are matters which mlust be left, to a great extent to the jury.” In High v. State, 26 Texas App. 545 (8 Am. St. Rep. 488, 490), that court quotes approvingly from Commonwealth v. Drum, 58 Pa. St. 1, opinion by Justice Agnew, as follows: “If a man approaches another with an evident intention of fighting him with his fists only, and where, under the circumstances, nothing would be likely to eventuate from the attack, but an ordinary beating, the law cannot recognize the necessity of taking _ life with a deadly weapon. In such,a case (pain or bloodshed supervening), it would be manslaughter. * * * But a blow or blows are just cause of provocation; and if the circumstances indicated to the slayer a plain necessity of protecting himself from great bodily injury, he is excusable if he slays his assailant in kn honest purpose of saving himself from this great harm.” These authorities we think render the instruction bad in the particulars indicated, calling for reversal of the judgment and a new trial.

The judgment below refusing a new trial on the ground that the verdict was not supported by the evidence is also assigned as error; but as there is to be a new trial because of a misdirection to the jury, it would be improper for us to consider the evidence.

'The judgment below will be reversed, and the defendant awarded a new trial.

Reversed.