DocketNumber: No. 9896
Citation Numbers: 45 S.E.2d 17, 130 W. Va. 708
Judges: KENNA, JUDGE:
Filed Date: 11/11/1947
Status: Precedential
Modified Date: 1/13/2023
Katherine Perkins was indicted by a grand jury of Wayne County for the murder of her husband, P. P. Perkins. She pleaded not guilty, was tried and convicted of murder of the second degree, and sentenced to imprisonment for a term of five to eighteen years. She brings the case here by writ of error.
On the evening of September 1, 1944, defendant, while riding in the automobile of a friend on Monroe Avenue in the City of Huntington, observed her husband in his automobile embracing a woman. At the request of defendant, the automobile was stopped, and defendant then went to the vehicle in which her husband and his companion were seated, and there engaged in a fight with the woman. The husband interfered in the struggle, enjoined defendant not to hurt his companion, and finally hit and kicked defendant several times. The defendant reentered her friend's automobile and returned to her home in the Town of Ceredo.
About ten o'clock p. m. of the same day, the husband returned to his home, and, according to defendant's testimony, he was angry and inclined to be violent. The quarrel between defendant and her husband was renewed and ended by the husband striking and kicking the defendant. After committing the second assault on defendant, the husband left his home and did not return until about midnight. Upon his return home he occupied a room on the second floor of his residence different from that which he and defendant had been wont to occupy. The defendant slept for the greater portion of the night in the room of her son and daughter-in-law.
On the morning of September 2, 1944, defendant prepared *Page 710 breakfast for a boarder, herself and her family. She and her daughter-in-law ate breakfast together, after which defendant went to the business section of the town for the purpose of paying a grocery bill. At some time during the morning defendant went to the home of a witness who testified for the State, where the witness said she saw a firearm in the possession of defendant, and that defendant indicated that trouble was about to occur.
Defendant returned to her home, went to an upstairs bedroom, and began combing her hair. While doing so her husband came to the door; severely criticized defendant on her conduct in fighting the night before; said in substance that he was not further interested as he was leaving, and started toward defendant, saying, "I will break your God damned neck."
The record is not clear as to what took place after the threat had been made by the husband. Defendant does not admit shooting her husband, but it is a reasonable inference, well supported by the facts, that she shot the deceased three times. One bullet entered his right shoulder, one about the middle of his right thigh, and another at the ninth dorsal vertebra. All bullets entered from the back. It is also a reasonable inference that defendant shot herself in the forehead, a pistol having been found near her body in the upstairs hall, and she was bleeding from a gunshot wound in her head.
The pistol found near defendant's body was offered as an exhibit, and was fairly well identified as belonging to a boarder and roomer, who stayed at the home of defendant and her husband, and whose room was on the first floor thereof. The neighbors of defendant were summoned and upon their arrival at the scene of the shooting, the husband, who had fallen down the stairway to the first floor, requested them to go upstairs and see about "Kate," adding that he was to blame for the shooting. Another witness testified that on the way to the hospital in the ambulance defendant stated she was sorry she had not killed her husband and applied to him a vile epithet. *Page 711
The husband was taken to a hospital, where he remained under treatment until the 8th day of April, 1945, when he left the hospital and returned to his home, where he died on April 16, 1945.
Defendant contends that the court committed the following errors: (1) In permitting an attending physician, prior to any proof of the cause of death, to give in evidence his opinion as to the cause of deceased's death; (2) in refusing to give defendant's instruction No. 3; and (3) by overruling defendant's objection to the cross-examination of defendant by the judge.
A physician who attended the deceased during the time he was in the hospital was introduced by the State to show the cause of death. The following question was asked: "Assuming the death of Plummer, or P. P. Perkins, to have been on April 16, 1945, basing your answer upon your experience and observation of this particular case in your hospital, what, in your opinion, was the cause of his death?" Defendant's objection to the foregoing question having been overruled, she now contends that the question was hypothetical and that the hypothesis on which the question was based had not been proved. We do not agree with that contention. The physician had testified before the above question was asked that the wound in the dorsal vertebra was the fatal wound, and that the death of decedent was caused by exhaustion due to sepsis, the result of the gunshot wound. Furthermore, before the question was asked and answered, the State introduced a portion of the public record showing that the death of deceased was caused by exhaustion. Proof of the cause of deceased's death was timely offered, and such proof constituted a sufficient factual premise for a hypothetical question, if such question had been asked.
But the question here objected to is not hypothetical. True, the physician was asked to assume that deceased died on April 16, 1945, but the date of the deceased's death had already been established by undisputed proof. Certainly, the physician who attended and treated deceased *Page 712
knew of his death and probably knew the date thereof, deceased having died about eight days after he left the hospital. The physician, having personal knowledge acquired by his own observation, knew the cause of death, was not precluded from answering the question, and could testify directly as to the cause of death. 2 Wharton's Criminal Evidence, 11th Ed., Section 1021; Underhill's Criminal Evidence, 4th Ed., Section 237. In support of her contention that the question and answer were improper, defendant cites the case of State v. Barker,
The court refused to give defendant's instructions Nos. 3, 7, 8, and 9. However, the only error assigned with reference to such refusal relates to instruction No. 3, and, therefore, we shall only discuss the action of the court with reference to said instruction.
Instruction No. 3 embodied a statement of the law of self-defense. The instruction was refused on the ground that there was no evidence, either on the part of the State or defendant, supporting an instruction on self-defense. The record in this case has been carefully examined. The acts of violence perpetrated by the deceased on defendant on the night preceding the shooting, as well as the threat made by deceased just prior thereto, have been considered. Mere words, unaccompanied by an overt act, are not sufficient to justify an instruction to the jury on the theory of self-defense.State v. Snider,
Facts necessary to support the theory of self-defense are not shown in this record. On the contrary, it is undisputed that all of the bullets inflicting wounds on deceased entered from the rear, which militates against the idea that deceased had assumed an aggressive attitude toward defendant at the time of the shooting. The refusal of the trial court to give defendant's instruction No. 3 is not error.
Defendant testified in her own behalf. At the commencement of her re-direct examination, her counsel asked one question, which she did not answer. At that time the judge of the trial court commenced to cross-examine defendant in the presence of the jury and asked, without intermission, forty-one questions. It would unduly prolong this opinion to quote all the questions asked by the judge and answered by defendant. Such questions related to the ownership of the revolver, and also how the revolver came to be on the second floor when the room of the owner thereof was on the first floor. The cross-examination also elicited the fact that defendant had made *Page 714 the roomer's bed on the morning of the shooting; that deceased was shot three times in the back; and that defendant also suffered a gunshot wound.
After developing these two subjects, the judge of the trial court then asked defendant the following questions:
"Q. Mrs. Perkins, you have told the jury you had a black-out up there on the evening when you found your husband with this woman and you don't remember anything except what your husband did to you, is that right?
"A. That is right, exactly right.
"Q. You remember everything that happened from then on until this shooting?
"A. Yes, sir.
"Q. You remember your husband standing with a flashlight in his hand and his gun in his hand?
"A. Yes, sir.
"Q. You remember that?
"A. Yes, sir.
"Q. Then you testified to the jury that you had a black-out from that time on, is that right?
"A. Yes, sir.
"Q. You don't know what happened?
"A. I don't remember anything that happened until late that evening in the hospital.
"Q. When that blackout struck you where were you standing?
"A. In the doorway.
"Q. Room No. 2?
"A. Yes, sir.
"Q. Where was he?
"A. In the hall.
"Q. Facing each other? *Page 715
"A. Yes.
"Q. And you don't know how that gun which has been exhibited in evidence got there in the hallway and found there after you were shot?
"A. I don't remember ever having that gun in my hands.
"Q. You didn't have a blackout except on those two occasions, is that right?
"A. I don't understand what you mean.
"Q. You told the jury your mind was a blank at the time of the trouble with this woman, now you tell the jury your mind was a blank from the time your husband was standing there in the hall and you were in the room facing him.
"A. I guess I was so mad, I don't know anything else."
Thereupon defendant objected to the questions asked by the trial judge and rested her case.
The question presented by the third assignment of error has been before this Court several times. In disposing of a similar question presented in the case of State v. Hurst,
The rule is amplified and restated in the seventh point of the syllabus in the case of State v. Austin,
The action of the trial judge in the case of State v. Songer,
For other cases discussing this principle, see State v.Staley,
This Court has applied the same rule to bastardy proceedings, in Ball v. Wilson,
In this case the demeanor of the trial judge is not portrayed by the record, nor is it shown whether the questions were brusque or otherwise. But it suffices to say that the trial judge in this case conducted a vigorous, *Page 717 searching and sustained cross-examination of the defendant. Upon consideration of any single question, we could not say that there was prejudice. But upon consideration of the forty-one questions asked defendant by the trial judge, the conclusion is inescapable that the trial judge by such cross-examination of defendant in the manner here shown intimated to the jury his opinion upon the facts in issue.
We cannot say to what extent the minds of the jurors who tried defendant were influenced by the cross-examination conducted by the trial judge, but we must assume that if the trial judge indicated to the jury his belief in her guilt, such belief influenced the jury in arriving at its verdict.
We do not intend to say that a trial judge should not ask questions during the progress of a criminal trial at proper times and in a proper manner. Clarifying questions are necessary, but we see no occasion for the trial judge to take over the duties of a prosecuting officer.
In accordance with the foregoing we reverse the judgment of the Circuit Court of Wayne County, set aside the verdict, and award the defendant a new trial.
Judgment reversed; verdict set aside; new trial awarded.
Road Com. v. Young , 100 W. Va. 394 ( 1925 )
State v. Barker , 128 W. Va. 744 ( 1946 )
State v. Songer , 117 W. Va. 529 ( 1936 )
State v. Wallace , 118 W. Va. 127 ( 1936 )
State v. Waters , 104 W. Va. 433 ( 1927 )
State v. Summers , 118 W. Va. 118 ( 1936 )
State v. Newman , 101 W. Va. 356 ( 1926 )
State v. Hively , 103 W. Va. 237 ( 1927 )
Ball v. Wilson , 98 W. Va. 211 ( 1925 )
State v. Frank Zinn , 95 W. Va. 148 ( 1923 )
State v. Crockett , 164 W. Va. 435 ( 1979 )
State v. Leep , 212 W. Va. 57 ( 2002 )
State v. Harriston , 162 W. Va. 908 ( 1979 )
Feliciano v. 7-Eleven, Inc. , 210 W. Va. 740 ( 2001 )
State v. Loveless , 140 W. Va. 875 ( 1955 )
State v. Pietranton , 137 W. Va. 477 ( 1952 )
State v. Rogers , 215 W. Va. 499 ( 2004 )