State v. Craig , 131 W. Va. 714 ( 1948 )

With every deference to the majority, in my opinion the Court has utterly disregarded the primary rule controlling matters of fact considered by this Court on writ of error after conviction. That rule is where conflicts in the testimony occur, those conflicts and all deductible reasonable inferences are to be resolved in favor, not of the accused or plaintiff in error, but of the State of West Virginia. State v. Marinitsis,130 W. Va. 613, 45 S.E.2d 733. Furthermore, again in my opinion, the majority has unintentionally misread the printed transcript of the testimony adduced at the trial, only two outstanding examples of which I shall undertake to recount.

In speaking of the death of Eli White a week after he was struck by the accused's automobile and whether that death was to be attributed to his resulting injury or confined to pneumonia alone, which was its immediate cause, the opinion of the Court states: "On that vital point there is only speculation and conjecture." With that statement my understanding of the record before the Court emphatically disagrees. Dr. Justice C. Pickens, a witness for the State, who was the only doctor called, on re-direct examination testified as follows:

"Q. What would you say were the contributing factors to his getting pneumonia at that time?

"A. I think first of all, he was very anemic; he had paralysis of the bowel, which came on about the third day afterward, which made pressure, and this, in turn, was followed by congestion in the lungs.

"Q. I believe paralysis of the bowel was the direct result of injury he received.

"A. I think it probably was. It came on later than you ordinarily see, but I think it probably was.

"Q. So far as you could observe by association with Mr. White, did you have any reason to believe he might have had pneumonia at that time, or at any time in the near future had it not been for the injury he suffered?

"Counsel for defendant object to the foregoing question, which objection is overruled by the Court, exception saved to defendant.

"A. No, I would not."

To my mind it is perfectly clear that in Dr. Pickens' stated opinion the death of White resulted from pneumonia brought about by his injury and that his death at that time would not otherwise have resulted. At any rate, the question was not left open to "speculation and conjecture."

The opinion of the Court states: "After he was hit White stood in the road behind the truck until he was led or assisted in walking from that point along the right side of the truck by the two employees and the defendant's wife, all of whom went at once to his assistance." The State's witness, T. A. Nethkin, in charge of cindering from the truck, in reply to questions on direct examination, said this:

"Q. Who reached Mr. White first, you or Mr. Johnson?

"A. Mr. Johnson.

"Q. What did you or Mr. Johnson, or both of you do?

"A. Lifted him up so he wouldn't fall in the road."

Ray Johnson, the driver of the State's truck, stated that upon hearing the impact from the cab, he jumped out and reached White in time to keep him from falling. He had this to say:

"Q. Describe the accident in your own words.

"A. I didn't see the car when it come up; I was in the cab. I heard it hit and run back; the car backed away, and this fellow started to fall, and I grabbed him and helped hold him, and Mr. __________ this other man got out of the car and said a few words, and I asked him if they would take him to the doctor or something —"

Concerning Mrs. Craig's conduct at the time the witness Nethkin in his examination in chief had this to say:

"Q. Was there anyone with the driver in the car?

"A. There was a lady; I didn't know her.

"Q. Did she get out of the car?

"A. No."

Conflicts in testimony after conviction are to be resolved in favor of the State. It strikes me as being quite incorrect to state that White stood after he was struck until he was assisted in walking to the cab of the truck by persons including the defendant's wife, all of whom went at once to his assistance. There are a number of other what I consider inaccuracies in the Court's opinion that I shall not undertake to mention such as that although the State's testimony shows that with its work-light on, the workmen at the truck could see the road behind it for a distance of at least one hundred and fifty feet, there was no showing that the truck was visible for an equal distance to a person approaching it in the direction the defendant was traveling, this in spite of the fact that counsel for the accused in his opening statement, made a part of the record, declared that: "This light on the rear of the cinder truck completely blinded defendant."

For these and other reasons I believe the Court has failed to give to a verdict of a jury the dignity to which it is entitled under long settled principles approved by this Court. Without dealing further with questions of fact, in my opinion the controlling principles of law upon which the majority opinion rests are erroneously decided and unnecessarily complicated.

No one questions the fact that Code, 17-8-23, creates a separate and distinct offense. All statutory and common law offenses are separate and distinct. But it is not the separation and distinction in definition that the cases dealing with the principle involved, i. e., the admission of evidence involving circumstances proof of which would establish an offense different from that for which the accused is being tried, deal. The separation and distinction in the cases we are considering is the consequential separation and distinction of the circumstances involved, all of which boils down to a question of relevance. If irrelevant it is properly excluded: if relevant it should be admitted. It cannot be admitted as an attack upon the accused's character alone.

I, of course, agree that separate, distinct and wholly independent offenses, unrelated to the charge being tried, for which there has been no conviction, cannot be proved nor testified to as against the accused. As an example, rape may not be proved in trying an indictment for receiving stolen goods, knowing them to have been stolen. However, if that principle is to be applied to testimony relevant to the charge which is to be excluded simply because it includes conduct of the accused which amounts to a separate violation of the law, even though directly related to the charge under trial, such as unintentional killing in the commission of a separate felony or death following an abortion, it would greatly hamper law enforcement in this jurisdiction.

I cannot believe that the testimony tending to show the inhuman conduct of the accused within three minutes of the victim's injury in the trial of an indictment for causing death by wanton disregard of the safety of others, should be excluded. The gravamen of the charge is the wanton disregard of the safety of others. To hold that his well-nigh immediate refusal to take the sufferer, who could not stand alone, to a hospital does not go to prove a mental attitude amounting to a wanton disregard of the safety of others is, to my mind, laying down a principle that amounts to cloaking guilt. I, of course, realize that separate and distinct crimes cannot be permitted to be proved. I realize also that in determining what are separate and distinct crimes there frequently is a twilight zone where the trial court's discretion is controlling. For a general discussion, see Jones on Evidence, 2d ed. Volume 2, page 117, ante and et seq. But, in my opinion, the circumstances of this case are not within a twilight zone. I believe that the evidence which the majority says the trial court improperly admitted was direct proof of one of the essential elements of involuntary manslaughter. The attitude of the accused was not a distinct offense. Nor was it a subsequent act. The death of White did not occur until a week later. The conduct of Craig or any statement that he made, now under consideration, intervened between the injury and the death of White. The admission of the testimony in question clearly does not rest alone on the question of aggravating the injury of White. The majority seems to believe it does. It rests upon showing the attitude of Craig toward others at the time. Certainly, if he refused immediately after striking White to take his victim, who was so injured that he could not stand, to a hospital, his mental state was exactly that of a man who would drive a car in wanton disregard of the safety of others.

In my opinion, it is clear that the majority has confused the matter of the aggravating of White's injury with the question of showing Craig's attitude, or mental state, at the time. True, he was accused of an unintentional killing. His frame of mind, mood or mental state — call it what you will — clearly has a vital bearing on whether he was then acting in disregard of the safety of others. Certainly, the State would have been permitted to show that he was driving while drunk, had that been a fact. The Supreme Court of Appeals of Virginia has perfunctorily held that proof of drunken driving is proper in the trial of manslaughter. Massie v. Commonwealth, 177 Va. 883,15 S.E.2d 30.

Cases holding proof of mental attitude of the accused by showing his conduct immediately preceding or following the commission of an offense to be proper, are so numerous that it is not necessary to discuss them in detail, and general citations suffice. As to flight before arrest, see annotation in 25 A.L.R. 887; as to flight in an automobile immediately following an injury resulting in death, see People v. Herkless,361 Ill. 32, 196 N.E. 829, and People v. Schwartz, 298 Ill. 218, 131 N.E. 806. See also State v.Busby, 102 Utah 416, 131 P.2d 510; State v. Wright, 130 W. Va. 336,43 S.E.2d 295, decided June 24, 1947. On consciousness of guilt and conduct tending to show it, see the discussion in Underhill's Criminal Evidence, 4th ed. 465.

The statement in the majority opinion that admitting the testimony that Craig refused to help White violated Section 14 of Article III of our Constitution is so plainly a non sequitur that I shall not attempt its answer. Craig was being tried for manslaughter: not a violation of Code, 17-8-23. He was entitled to be "informed of the character and cause of the accusation": not of an offense for which he was not being prosecuted. The books are full of cases involving murder with a deadly weapon where the accused was not charged with carrying a revolver.