Hearne, Julian G., Jr.

English

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Volume 35 Issue 2 Article 13 February 1929 Criminal Law--General Instructions not in Harmony with the Evidence Should not be Given Julian G. Hearne Jr. West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Criminal Law Commons, and the Evidence Commons Recommended Citation Julian G. Hearne Jr., Criminal Law--General Instructions not in Harmony with the Evidence Should not be Given, 35 W. Va. L. Rev. (1929). Available at: https://researchrepository.wvu.edu/wvlr/vol35/iss2/13 This Student Notes and Recent Cases is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. WEST V1IRGINIA LAW QUARTERLYcalled to attend another patient does not excuse him in this case."Upon the actual facts here it would seem that the defendant wasnegligent in failing to give the patient notice or in procuring an-other doctor for her as he might have done. The conclusionreached here is no doubt correct and there is apparently no rea-son to fear that the court in another case would make an unwiseextension of the rule.-HARRIET L. FRENC.,CRIMINAL LAW----GEN-ERAL INSTRUCTIONS NOT IN HARMONY WITHTHE EVIDENCE SHOULD NOT BE GIVEN.-Accused was convicted offirst degree murder, and brought error. Defendant was a con-stable and had been threatened by deceased several days beforethe tragedy, deceased telling defendant to get his gun and black-jack so he could "take them off of him." There was further evi-dence that defendant was disliked by deceased. A few days laterdefendant was walking along the highway toward deceased's resi-dence when deceased and a companion, both intoxicated and thelatter displaying a pistol, were going up the steps of deceased'shouse. As defendant approached both men swore at him, anddefendant seeing another constable signaled to him to assist inmaking an arrest, but it does not appear that the other heededthe signal. Deceased then walked toward the defendant, his com-panion having retired in the house, saying "what in the hellhave you got to do with this?" at the same time having hishand in his hip pocket or behind him. Defendant called twiceto halt, and fired a warning shot, and as this was without result,fired the shot which took effect. It does not appear whether de-ceased was armed or not. The court charged the jury " * 0 Ifthe intent to kill is executed the instant it springs into the mind,it is as truly murder as if it had dwelt there for a longerperiod." Held, "i 0 Altho similar instructions have been ap-proved by this court in particular eases, in view of the evidenceand circumstances surrounding the fatal shot, and the absence ofinstructions dealing with murder in the first and second degreesor manslaughter, *- " * the instruction 0 1 * was misleading * *and therefore constitutes -reversible error", citing State v. Manns,48 W. Va. 480, 37 S. E. 613; Cobb v. Simon, 119 Wis. 597, 97 N.W. 276; State v. Shamblin, 143 S. E. 230 (W. Va. 1928).1Hearne: Criminal Law--General Instructions not in Harmony with the EvidenPublished by The Research Repository @ WVU, 1929STUDENT NOTES AND RECENT CASES"It is well settled that, if the intent to take life is executedafter deliberation and premeditation, though but for a moment oran instant, the crime is murder in the first degree." State v.Porter, 98 W. Va. 390 at 411, 127 S. E. 386. Therefore it wouldseem that the charge given in the principal case would have beensustained, had there been no evidence of extenuating circum-stances. However, under an instruction covering second degreemurder it is possible that the jury might have returned such averdict. See State v. Garner, 97 W. Va. 222, 124 S. E. 681,where there was evidence of a previous altercation between thedeceased and accused, with a shooting incident almost identicalwith principal case. The jury found second degree murder.The court expressed regret in setting the verdict aside, on theground that an improper charge had been given, altho it seemsthat their honors felt that the jury had nevertheless been guidedby the correct charges. But it is difficult to see how an in-struction concerning manslaughter would have been appropriate,since the necessary hot blood and heat of passion are lacking.State v. Murphy, 89 W. Va. 413, 109 S. E. 771. Therefore itwould seem that defendant was either guilty of murder, or in-nocent of any crime, and that the court, in reversing on theground that the charge was misleading in that no mention of sec-ond degree murder or manslaughter was made, overlooked thepoint that manslaughter would not apply to the case. But anyinstruction given should not leave in doubt whether or not theaccused could be convicted of a lesser offense or acquitted.State v. Graham, 94 W. Va. 67, 117 S. E. 699, reaffirmed in Statev. Brannon, 103 W. Va. 427, 137 S. E. 694. In the principal casethe jury should not be led to believe that they have no alter-native other than conviction, for there is some evidence of selfdefense in that defendant, having previously been threatened, mayhave feared that the threat was about to be carried out, and itwould be proper for them to consider the evidence in this light.State v. Laura, 93 W. Va. 250, 116 S. E. 251; State v. McMillion,104 W. Va. 1 at 11, 138 S. E. 732. It was not necessary for de-fendant to retire before shooting as he was lawfully on the pub-lic highway. State v. Donahue, 79 W. Va. 260, 90 S. E. 834.Nor was he required to wait until he had actually been covered bya gun before firing. Miers v. State, 34 Tex. Cr. App. 161, 29 S.W. 1074. (The court there stated that the defendant did notshoot soon enough.)2West Virginia Law Review, Vol. 35, Iss. 2 [1929], Art. 13https://researchrepository.wvu.edu/wvlr/vol35/iss2/13WEST VIRGINIA LAW QUARTERLYThe opinion does not disclose any evidence to the effect thatdefendant was attempting to make a lawful arrest or that de-ceased knew of such a purpose, other than the single instance ofdefendant's signaling to the other constable. Had such evidencebeen introduced the case would then be on all fours with State v.Stockton, 97 W. Va. 46, 124 S. E. 509, which held that there wasno evidence of malice when the accused, making a lawful arrest,shot his prisoner in what he honestly believed to be self defense.In the next issue it will be submitted that second degree murderwould not apply to this case.-JUIAN G. HEARNE, JR.SURvivA. OF ACTION - LIABILITY INSURANCE - DIRECT RIGHTAGAINST THE INSURER.-Plaintiff was injured in a collision be-tween a car in which he was riding, and the car of an individualtaxi operator, who had complied with Section 62, Chapter 6, Actsof 1923, by filing with the State Road Commission satisfactoryliability insurance for the purpose of indemnifying the public forinjuries to person and property resulting from such collisions.The defendant insurance company was his insurer. The taxioperator having died before the plaintiff brought her action, theonly available party against whom suit could be brought wasdefendant company. The plaintiff sued about nine months afterthe cause of action arose. Held, the plaintiff could not proceedagainst the insurer alone until such claim was liquidated. Thecourt followed principles enunciated in O'Neal v. TransportationCompany, 99 W. Va. 456, 129 S. E. 478, without any discussion.Criss v. United States Fidelity & Guaranty Company, 142 S. E.849 (W. Va. 1928).By this holding the court cut the plaintiff off from any satis-faction whatever. The hardship is due in part to the rule thatan action for injuries does not survive against the estate of adeceased tort-feasor. This obviously objectionable common lawrule has been remedied by statute in a large number of juris-dictions. See 1 C. J. 196. The WEST VIRGINIA 'CODE, Chapter127, Section 2, provided that "If the plaintiff or defendant diepending any action, whether the cause of action would surviveat common law or not, the same may be revived and prosecutedto judgment and execution in the same manner as if it were for3Hearne: Criminal Law--General Instructions not in Harmony with the EvidenPublished by The Research Repository @ WVU, 1929

Criminal Law--General Instructions not in Harmony with the Evidence Should not be Given

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Criminal Law--General Instructions not in Harmony with the Evidence Should not be Given

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