State v. Hamric

*29 Bhownihg, Judge,

dissenting:

I dissent. It is with respect and deference that I disagree with the other four members of the Court in this case, but in my opinion the evidence falls far short of sustaining a verdict of guilty of murder in the second degree and such verdict, viewed in the light of other errors occurring in the course and conduct of the trial, even though the majority has determined them not to constitute reversible error, neverthless, brings me to the firm conclusion that the defendant has been denied the fair trial to which she was entitled.

The pertinent facts in this case are comparatively simple, the physical facts and much of the state’s evidence confirming completely the statements made by the defendant immediately after the deceased was shot as well as her testimony at the trial. A young mother with two sleeping children in the house whose husband, a deputy sheriff, was away on duty discovered some person attempting to enter her house by way of a window and, retreating as far as possible without leaving the room, blindly fired a shotgun at the window, the shot piercing the drape, a Venetian blind, and a portion of the sash as well as a portion of the pane of glass. The evidence shows without contradiction that this was the second time during that evening and night that someone had attempted to enter the defendant’s home by way of that window. In his opinion, which has been made a part of the record in this case, the able trial judge found: ‘ ‘ She never saw the deceased before she fired the gun. She did not know who or where he was. She only heard a noise at the window as if someone was raising it. Then she loaded the gun, stepped to the door, and fired. He could have retreated in the meantime.” Reference to the physical facts of the case admits of no alternative that deceased, if he had begun to retreat, had not retreated more than a step or two, and also, that the defendant could have had no knowledge of this supposed retreat. The state’s evidence revealed that there were no powder burns on the drape *30 and in order for the shotgun blast to leave no powder .marks the muzzle of the gun must necessarily have been at least three feet distance therefrom. The barrel ■of the gun was thirty inches in length, thus the defendant could not have stood closer than five and one-half feet from the window at the time the shot was fired. It is uncontradicted that the Venetian blind was tilted so that a person in the room could not see out unless he or she stood very close to the window and that the shot pierced the lined drape, additionally covering at least a portion of the window, so that it would have been impossible for the defendant to know the whereabouts of the person at whom she fired or whether, after the noise at the window and the vibration of the television antenna, the intruder had desisted from any attempt at entry.

It is also in evidence, through comparison of the drape, Venetian blind and window sash, that the direction of the shot was at a slight angle downward. The height of the window sill from the ground was forty-six inches. To align the holes in the drape and blind with that of the sash, the sash must have been raised three or four inches making the course of the shot approximately fifty inches above the ground. The deceased was approximately five feet eight inches, or sixty-eight inches, tall and the shot struck him mainly in line with the left nipple, approximately fourteen inches from the top of his head or at a level on his body of fifty-four inches. The downward path of the shot is obvious from the window sash in evidence and it thus becomes apparent, with only a rudimentary knowledge of the laws of physics, that the deceased was in a slight crouch in close proximity to the window, on defendant’s property, at the time the shot was fired. If he had been standing erect at the window the shot would have centered some four inches lower or, if standing erect at the hedge, still on defendant’s property, approximately seven inches lower or near the belt line. If, as the state contended and the jury apparently believed, the do- *31 ceased was beyond the hedge “in my yard” at the time of the shooting the shot would necessarily have struck him below the waist. As further proof of the downward course of the shot, not one pellet was found in the side of the Van Winkle frame house, a mere twenty-seven and one-half feet from the window through which the shot was fired. The state’s contention that, under the above circumstances, the defendant fired blindly out of the window striking the deceased who was on his own premises, and who was “not attempting to enter her house” as assumed in syllabus points 5 and 7 of the majority opinion, is then utterly without foundation and, as necessarily follows, the deceased was on defendant’s property at or near her window at the time of the shooting, there is no evidence to contradict her statement that the deceased was attempting, or gave her reasonable grounds to believe that he was attempting, to enter her home for some malevolent purpose at the time she fired the shot. It does not require the citation of authority to note that, while the jury determines the credibility of witnesses and the weight to be given to their testimony and is entitled to draw reasonable inferences from the proved facts in a ease, such inferences must be reasonable and the jury should not be permitted to ignore physical facts totally inconsistent with such inferences and this Court is not compelled to accept as true, because apparently so found by a jury with the approval of the trial court, facts which in the nature of things could not have occurred in the manner and under the circumstances narrated.

The rule is well established in this jurisdiction and elsewhere that a man’s home is his castle, and that he has a right to protect it and those within it from intrusion or attack. A person may repel force with force in defense of his person, habitation, or property against one who manifestly intends or endeavors by violence or surprise to commit a known felony, such as murder, rape, robbery, arson, burglary, etc. In these cases he is not obligated to retreat but may pursue his adversary *32 until he has secured himself from all danger. People v. Lewis, 117 Cal. 186 , 48 P. 1088 , 59 Am. St. Rep. 167 ; Sullivan v. State, 102 Ala. 135 , 15 So. 264 , 48 Am. St. Rep. 22 ; Carroll v. State, 23 Ala. 28 , 58 Am. Dec. 282 ; People v. Hecker, 109 Cal. 451 , 42 P. 307 , 30 LRA 403; Powell v. State, 101 Ga. 9 , 29 S.E. 309 , 65 Am. St. Rep. 277 ; State v. Thompson, 9 Iowa 188 , 74 Am. Dec. 342 ; State v. Robertson, 50 La. Ann. 92 , 23 So. 9 , 69 Am. St. Rep. 393 ; State v. Bonofiglio, 67 NJL 239, 52 A. 712 , 54 A. 99 , 91 Am. St. Rep. 423 ; Erwin v. State, 29 Ohio St. 186 , 23 Am. Rep. 733 ; 18 ALR 1290 ; 2 LRA (NS) 53. Eegardless of any general theory to retreat as far as practicable before one can justify turning upon his assailant and taking life in self-defense, the law imposes no duty to retreat upon one who, free from fault in bringing on a difficulty, is attacked at or in his own dwelling or home. Hutcherson v. State, 165 Ala. 16 , 50 So. 1027 , 138 Am. St. Rep. 17 ; State v. Turner, 95 Utah 129 , 79 P. (2d) 46 . Upon the theory that a man’s house is his castle, and that he has a right to protect it and those within it from intrusion or attack, the rule is practically universal that when a person is attacked in his own dwelling he may stand at bay and turn on and kill his assailant if this is apparently necessary to save his own life or to protect himself from great bodily harm. State v. Frizzelle, 243 N.C. 49 , 89 S.E. 2d 725 , 52 ALR 2d 1455 ; Hill v. State, 194 Ala. 11 , 69 So. 941 , 2 ALR 509 ; Karr v. State, 100 Ala. 4 , 14 So. 851 , 46 Am. St. Rep. 17 ; Lee v. State, 92 Ala. 15 , 9 So. 407 , 25 Am. St. Rep. 17 ; Brinkley v. State, 89 Ala. 34 , 8 So. 22 , 18 Am. St. Rep. 87 ; Elder v. State, 69 Ark. 648 , 65 SW 938 , 86 Am. St. Rep. 220 ; People v. Lewis, 117 Cal. 186 , 48 P. 1088 , 59 Am. St. Rep. 167 ; State v. Bennett, 128 Iowa 713 , 105 NW 324 , 5 Ann. Cas. 997; Estep v. Com., 86 Ky. 39 , 4 SW 820 , 9 Am. St. Rep, 260; Young v. State, 74 Neb. 346 , 104 NW 867 , 2 LRA (NS) 66; People v. Tomlins, 213 NY 240 , 107 NE 496 , Ann. Cas. 1916C 916; State v. Brooks, 79 SC 144, 60 SE 518 , 17 LRA (NS) 483, 128 Am. St. Rep. 836 , 15 Ann. Cas. 49; State v. Patterson, 45 Vt. 308 , 12 Am. Rep. 200 ; State *33 v. Turner, 95 Utah. 129, 79 P. (2d) 46 ; State v. Cushing, 14 Wash. 527 , 45 P. 145 , 53 Am. St. Rep. 883 ; Palmer v. State, 9 Wyo. 40 , 59 P. 793 , 87 Am. St. Rep. 910 ; 67 LRA 541; 2 LRA (NS) 71; 45 LRA (NS) 72; 74 Am. St. Rep. 727 ; 93 Am. St. Rep. 261 ; 5 Ann. Cas. 999; 15 Ann. Cas. 51; Ann. Cas. 1916C 918. Furthermore, the fact that retreat can he safely effected does not render it necessary for a man assaulted in his dwelling to retreat therefrom. Brinkley v. State, 89 Ala. 34 , 8 So. 22 , 18 Am. St. Rep, 87; Estep v. Com. 86 Ky. 39 , 4 SW 820 , 9 Am. St. Rep. 260 ; Palmer v. State, 9 Wyo. 40 , 59 P. 793 , 87 Am. St. Rep. 910 .

The legislature of this state has not seen fit to lay down a rule with regard to this matter and therefore as the constitution of this state provides the English common law is still in effect and binding upon this Court. The judicial decisions in England, the colonies and the states since the separation in an uninterrupted and nn-deviating line have adhered to this principle — a person not only may take life in his own defense, hut may do so in defense of other persons where the circumstances warrant. He may do so where the relationship of wife, parent, or child exists. The rule is the same as to the right of a wife to defend her husband or her child. Many of the cases say it is not only the right of such person to protect their loved ones but it is their legal duty to do so. Bailey v. People, 54 Colo. 337 , 130 P. 832 ; 45 LRA (NS) 145, Ann. Cas. 1914A 1142; Dukes v. State, 11 Ind. 557 , 71 Am. Dec. 370 ; Utterback v. Com., 105 Ky. 723 , 49 SW 479 , 88 Am. St. Rep. 328 ; Campbell v. Com., 88 Ky. 402 , 11 SW 290 , 21 Am. St. Rep. 348 ; Estep v. Com., 86 Ky. 39 , 4 SW 820 , 9 Am. St. Rep. 260 ; Morrison v. Com., 24 Ky. L. Rep. 2493, 74 SW 277 , 67 LRA 529; State v. Francis, 152 SC 17, 149 SE 348 , 70 ALR 1133 ; State v. Douglas, 115 SC 483, 101 SE 648 , 8 ALR 656 ; State v. Cook, 78 SC 253, 59 SE 862 , 15 LRA (NS) 1013, 125 Am. St. Rep. 788 , 13 Ann. Cas. 1051; Foster v. State, 102 Tenn. 33 , 49 SW 747 , 73 Am. St. Rep. 855 ; Mayhew v. State, 65 Tex. *34 Crim. Rep. 290, 144 SW 229 , 39 LRA (NS) 671; Wood v. State, 128 Ala. 27 , 29 So. 557 , 86 Am. St. Rep. 71 ; State v. Turner, 246 Mo. 598 , 152 SW 313 , Ann. Cas. 1914B 451; Johnson v. State, 125 Tenn. 420 , 143 SW 1134 , Ann. Cas. 1913C 261; Snell v. State, 29 Tex. App. 236, 15 SW 722 , 25 Am. St. Rep. 723 ; Ross v. State, 10 Tex. App. 455, 38 Am. Rep. 643 ; People v. Forte, 269 Ill. 505 , 110 NE 47 , LRA 1916B 924; 13 Ann. Cas. 1058. The modern rule as to homicide in defense of the habitation is that if an assault on a dwelling and an attempted forcible entry are made under such circumstances as to create a reasonable apprehension that it is the design of the assailant to commit a felony or to inflict on the inmates a personal injury which may result in the loss of life or great bodily harm, and the danger that the design will he carried into execution is imminent and present, the lawful occupant of the dwelling may lawfully prevent the entry, even by the taking of the life of the intruder. Alberty v. United States, 162 US 499 , 40 L. ed. 1051, 16 S. Ct. 864 ; Carroll v. State, 23 Ala. 28 , 58 Am. Dec. 282 ; State v. Perkins, 88 Conn. 360 , 91 A. 265 , LRA 1915A 73; Wilson v. State, 30 Fla. 234 , 11 So. 556 , 17 LRA 654; Powell v. State, 101 Ga. 9 , 29 SE 309 , 65 Am. St. Rep. 277 ; Foster v. Shepherd, 258 Ill. 164 , 101 NE 411 , 45 LRA (NS) 167, Ann. Cas. 1914B 572; Estep v. Com., 86 Ky. 39 , 4 SW 820 , 9 Am. St. Rep. 260 ; Williams v. State, 127 Miss. 851 , 90 So. 705 ; Young v. State, 74 Neb. 346 , 104 NW 867 , 2 LRA (NS) 66; Thompson v. State, 61 Neb. 210 , 85 NW 62 , 87 Am. St. Rep. 453 ; State v. Bailey, 27 NM 145 , 198 P. 529 ; State v. Gray, 162 NC 608, 77 SE 833 , 45 LRA (NS) 71; Hudgens v. State, 166 Tenn. 231 , 60 SW (2d) 153 ; Newman v. State, 58 Tex. Crim. Rep. 443; 126 SW 578 , 21 Ann. Cas. 718; State v. Patterson, 45 Vt. 308 , 12 Am. Rep. 200 ; Palmer v. State, 9 Wyo. 40 , 59 P. 793 , 87 Am. St. Rep. 910 . State v. Sorrentino, 31 Wyo. 129 , 224 P. 420 , 34 ALR 1477 , is directly in point and holds that where one hears another attempting to force his way into his habitation in the night he is not bound to call out or give an alarm in *35 order to escape an imputation of malice if lie kills the intruder in preventing the forced entry. In State v. Gray, 162 NC 608, 77 SE 833 , 45 LRA (NS) 71, it was held that a householder who is awakened by an intruder kicking at the door and threatening to enter the dwelling will he justified, upon the intruder’s breaking a window to effect an entrance, in killing him, if the householder believes, or has reasonable ground to believe, that his act is necessary to prevent harm to himself or his family, or the violent entry of his home. Furthermore, the laiv does not require that the danger to the householder be real, that is, that the peril actually exist to entitle the householder to resist even to the taking of life. Carroll v. State, 23 Ala. 28 , 58 Am. Dec. 282 ; State v. Perkins, 88 Conn. 360 , 91 A. 265 , LRA 1915A 73; Thompson v. State, 61 Neb. 210 , 85 NW 62 , 87 Am. St. Rep. 453 ; State v. Gray, 162 NC 608, 77 SE 833 , 45 LRA (NS) 71; Newman v. State, 58 Tex. Crim. Rep. 443, 126 SW 578 , 21 Ann. Cas. 718. The law does not require of a defendant who commits a homicide under the mental excitement induced by wrongful assault upon his habitation the same circumspection and cool and deliberate judgment as might otherwise be the case. Patten v. People, 18 Mich. 314 , 100 Am. Dec. 173 . Even under circumstances which do not justify the act of committing homicide, if done in preventing an unlawful entry into a dwelling, there is no case in this country except the instant one which has not held that that circumstance reduces the degree of the crime to manslaughter. See also: 25 ALR 523 , s. 32 ALR 1514 , and 34 ALR 1488 .

This Court, until the decision of this case, has been aligned with the cited authority. In State v. Manns, 48 W. Va. 480 , 37 S. E. 613 , the defendant was tried for murder, found guilty and sentenced to be hanged. The evidence showed that his neighbor, a medical doctor, had been on a rampage throughout the day of the killing, firing his gun at random and finally firing a shot into defendant’s home where he and his family were having dinner. The defendant secured a weapon, went *36 to the comer of his house and killed his rampageous neighbor. At that moment neither the defendant nor his family was in immediate danger, hut this Court had no difficulty in reversing that conviction and finding that the defendant had a right to do exactly what he did. There, as here, a dangerous and deadly weapon was used to kill one who was in a manner threatening a neighbor’s family. The Court said, among other things, in the opinion, “Every man has the right of self-defense of himself and family, and when attacked in his home, he is not bound to flee therefrom before exercising that right, but smarting under strong provocation he may exceed the bounds set by the law, and knowingly use greater force than necessary, and yet he would not be guilty of murder in the first degree but of a lesser offense.” The Court further said that the jury in such a case should be properly instructed so that it may not “be easily misled into giving a verdict contrary to law. ’ ’

In State v. Clark, 51 W. Va. 457 , 41 S. E. 204 , the defendant killed one John Dempsey and was found guilty of murder of the first degree. This Court affirmed that conviction by a three to one majority, but the principles laid down therein show conclusively that the defendant in the instant case did not get a fair trial. Briefly, these were the facts in the Clark case: The deceased and Clark lived on neighboring farms on Pigeon Creek in Mingo County, Dempsey owning his farm and Clark’s wife being the owner of the one they lived on. There was animosity between them, apparently growing out of religion. It was necessary for Dempsey to cross a small portion of the Clark land in going from his home in a certain direction. Clark put up a barrier and notified the deceased not to trespass thereon; the deceased came riding his mule to that place and found Clark and another person, the only other witness; a verbal altercation occurred, each vowing to go to his home and get a weapon; and Clark went and got his shotgun and Dempsey returned with an ax. The jury naturally did not have the benefit of Demp *37 sey’s testimony, but Clark and the other witness said that Dempsey came toward Clark using profane language and threatening him with great bodily harm. Although the deceased was still astride his mule, Clark shot and killed him. The conviction was affirmed by this Court. This is the fourth syllabus point of that case: “In cases of assault, not made with the intent to kill or do great bodily harm, or when the person assaulted is not in his dwelling-house, he cannot justifiably kill his assailant without first having retreated ‘to the wall.’ ” (Italics supplied.) State’s Instruction No. 5 told the jury that if they believed from the evidence that Dempsey was about to commit a trespass against the property of the defendant or his wife and that if, in attempting to prevent the trespass, the killing resulted, they should find him guilty of murder. Although the Court criticized the instruction it was not held to be reversible error but the Court said this about it: “The objection to this is, that it failed to inform the jury that the trespass, although insufficient to justify the killing, was proper to be considered as provocation which might reduce the offense to manslaughter. . . . ‘A bare trespass against the property of another, not his dwelling-house, is not sufficient provocation to warrant . . .’ ” the use of a deadly weapon. (Italics supplied.) The Court also said: “Under such circumstances, neither the possession of the gun at the time and place in question nor the prisoner’s having gone after it and brought it there, would have afforded ground for the inference that he premeditated the killing of deceased.” And, after further stating that a man must retreat to the wall before killing one who is merely trespassing upon property, the Court said: “The only exception to this is where a man is assaulted without intent to kill in his own dwelling house. There, he need not run or retreat, but he cannot kill his adversary unless it is necessary to save his own life, or prevent other felony.” (Italics supplied.) This observation by Judge Poffenbarger is pertinent to the fallacy of picking one instruction out of a former case *38 and giving it in another where the facts may be dissimilar. He said: “Nothing is better settled than that every instruction must be founded upon the evidence in the case and in view of the circumstances of the case. An abstract proposition of law which may be applicable to one case may be wholly inapplicable to another by reason of the difference in the evidence and circumstances.” He quoted from Wharton on Evidence, § 1237, to this effect: “Presumptions of fact, in other words, relate to unique conditions, peculiar to each case, incapable of exact reproduction in other cases; and a presumption of fact applicable to one case, therefore, is inapplicable, in the same force and intensity, to any other case. But a presumption of law relates to whole categories of cases, to each one of which it is uniformly and equally applicable, in anticipation of the facts developed on trial.” Even upon the facts of that case, Dent, President, dissented, quoting with approval from People v. Payne, 8 Cal. 341 , the following language: “The owner of property in the possession of the same has a right to use such force as is necessary to prevent a forcible trespass; and where a trespasser goes with the intent and with the means to commit a felony, if necessary to accomplish the end intended, the owner of the property may repel force by force to the extent of killing the aggressor.” He said further that “The question presented by the undisputed evidence was not one of slight provocation or of mutual combat or of a mere trespass free from malice and force.” (Italics supplied.) He concluded his opinion thus: “If the forcible, unlawful, malicious and wilful conduct of the deceased had been presented to the jury in its true legal light they would not have found a verdict for murder in the first degree. The prisoner is thereby made to suffer for the death of the deceased brought on by reckless and lawless indifference to the just rights of others. This may be the end of human law, but it is not justice. ’ ’

I am of the firm opinion that the giving of State’s *39 Instruction No. 12 was reversible error. That instruction is as follows: ‘ ‘ The Court further instructs the jury that if you believe beyond a reasonable doubt that Bonnie June Hamric inflicted a mortal wound with a deadly weapon in her previous possession upon G-len Winters, without any, or upon very slight provocation, then this is prima facie, wilful, deliberate and premeditated killing and throws upon Bonnie June Ham-ric the necessity of proving extenuating circumstances and unless Bonnie June Hamric proves such extenuating circumstances or the circumstances appear from the case made by the State, she is guilty of murder of the first degree.” The word “provoke” connotes umbrage, harassment, offense, inflamation, etc. In my opinion the phrase “slight or no provocation” was inappropriate and reversible error as used in the state’s instruction No. 12 given by the trial court to the jury. In the Manns opinion it was stated: ‘ ‘ Jurors look to the court for advice as to the law, and when the court gives them an instruction, they have the right to rely on it as stating the law of the case. What in law is deemed slight provocation they do not know, and if the court uses the language above they take it for granted that the provocation, if any at all, was only slight in law, otherwise the court would not give such an instruction.” Finally, Judge Dent said: “A law abiding citizen would have concealed his family and sought the aid of an officer of the peace, if he could be found. . . . But an average man with an average temperament would have given blow for blow, shot for shot, eye for eye, tooth for tooth, life for life. Whether the prisoner went farther than the law justifies him in doing he has the right to have an impartial jury of his peers, properly instructed as to the law to say, and he has the right to have his defense presented by proper instructions.” (Italics supplied.) In State v. Sauls, 97 W. Va. 184 , 124 S. E. 670 , the theory propounded by this instruction that murder automatically comes into being upon the killing of one person by another by firing a deadly weapon was *40 totally and completely rejected and, in my opinion, has never been resurrected since that case. This is the eighth point of the syllabus in the Sauls case: “An instruction that the jury may infer malice, the intent to kill, and the willfulness from the unlawful use of a deadly weapon previously obtained, and which omits mention of any of the circumstances of the case which might, in the minds of the jurors, rebut such inferences, is erroneous.” This is the pertinent part of syllabus point seven of that case: “. . . an instruction in the trial of one for murder, which charges the jury that a homicide is presumed to be murder in the second degree, without referring to the particular circumstances of the instant case is abstract and too comprehensive.” In State v. Best, 91 W. Va. 559 , 113 S. E. 919 , this Court held that an instruction to the effect that “malice might be inferred, without reference to the facts and circumstances calculated to rebut such inference of malice”, is misleading.

In State v. Whitt, 96 W. Va. 268 , 122 S. E. 742 , the Court states in the third syllabus point which, insofar as is material, says: “Where the facts and circumstances of a homicide case are such that they may in the minds of the jurors rebut a mere inference of malice on the part of the accused, an abstract instruction to the effect that deliberation, wilfulness and malice may be inferred from the use of a deadly weapon; and which omits to mention any of the various circumstances tending to rebut such inference, is erroneous.” Incidentally, that instruction was taken from State v. Welch, 36 W. Va. 690 , 15 S. E. 419 , and had been severely criticized by Judge Brannon in that case but not held to be reversible error. In the opinion in the Whitt case the Court very appropriately said: “An instruction should have reference to the facts shown in the case on trial. For this reason it is as a general rule bad practice to lift bodily from another case an instruction probably applicable to the facts shown there and use it in a case where the facts shown are totally different.” State’s Instruction No. *41 12 simply told the jury that if Bonnie June Hamric killed Glenn Winters with a deadly weapon without any or upon very slight provocation that it was prima facie a wilful, deliberate and premeditated killing and unless Bonnie June Hamric could prove extenuating circumstances or such were shown by the state she was guilty of murder of the first degree. It is not the law of this state that a woman, where in her home alone with her two young daughters, who retreats to the wall of that home and then blindly fires at an intruder who is at the window is prima facie guilty of murder. As was very appropriately said in the Whitt case, “It is sufficient to say that the defendant is entitled to a trial according to the rules of law.”

Although, as heretofore pointed out, the physical facts show that the deceased must have been on defendant’s property at the time of the shooting, his proximity to the window becomes of crucial importance to further corroborate the defendant’s recital of the circumstances. The state’s evidence shows that glass and wood particles from the window did not extend into the yard more than three feet. The existence or non-existence of such debris on the clothing of the deceased thus becomes vital and, while I agree with the majority that the defendant did not make a proper showing for a new trial upon the ground of after discovered evidence, I am firmly convinced that the deliberate suppression of evidence that such debris did appear on the clothing of the deceased was reversible error. In the affidavits of Lt. R. J. Barber and Cpl. R. F. Langley of the department of public safety, experts in their fields in the criminal identification bureau, both officers affirm that the state had such information in its possession at the time the trial began. However, the state did not call these men as witnesses, but introduced other witnesses, who had no occasion to observe the fact, to prove the contrary. This, in my opinion, violated the due process clauses of the constitutions of this state and of the United States. Section 5, paragraph *42 2 of the Code of Professional Ethics governing the conduct of prosecuting attorneys reads: “The primary duty of a lawyer engaged, in public prosecution is not to convict, hut to see that justice is done. The suppression of facts or the secreting of witnesses capable of establishing the innocence of the- accused is highly reprehensible.” (Italics supplied.) This statement is contained in 42 Am. Jur., Prosecuting Attorneys, Sec. 20: “In criminal prosecutions, it has been said that it is as much the duty of prosecuting attorneys to see that a person on trial is not deprived of any of his statutory or constitutional rights as it is to prosecute him for the crime with which he may be charged. The public interests, however, demand that a prosecution should be conducted with energy and skill. While the prosecuting officer should see that no unfair advantage is taken of the accused,' yet he is not a judicial officer. Those who are required to exercise judicial functions in the case are the judge and the jury. The public prosecutor is necessarily a partisan in the case. If he were compelled to proceed with the same circumspection as the judge and jury, there would be an end to the conviction of criminals. Zeal in the prosecution of criminal cases is therefore to be commended and not condemned. If convinced of the defendant’s guilt, he should, in an honorably way, use every power that he has to secure his conviction. At the same time, it is the duty of the prosecuting attorney, who represents all the people and has no responsibility except fairly to discharge his duty, to hold himself under proper restraint and avoid violent partisanship, partiality, and misconduct which may tend to deprive the defendant of the fair trial to which he is entitled; and it is as much his duty to refrain from improper methods calculated to bring about a wrongful conviction as it is to use every legitimate means to bring about a just one. It is the duty of the prosecutor to see that nothing but competent evidence is submitted to the jury; and, above all things, he should guard against anything that would prejudice *43 the minds of the jurors, and tend to hinder them from considering only the evidence introduced. He should never seek by any artifice to warp the minds of the jurors by inference or insinuations.” This is a comment in 4 M.J., Commonwealth’s and State’s Attorney, Section 6: “An attorney for the state may prosecute vigorously, so long as he deals fairly with the accused; but he should never become a partisan, intent only on conviction. Accordingly, it is a flagrant abuse of his position to refer, in his argument to the jury, to material facts outside the record, or not fairly deducible therefrom. For prosecuting attorneys in the conduct of criminal trials have a quasi-judicial position and owe a duty to the courts as well as to the state to observe rules of practice and procedure which serve to give those tried for crime the safeguards of a fair trial. ’ ’

In the early morning of September 8th, Harl Winters, a brother of deceased (who stated under oath that he had employed the special prosecutor in this case, as he had a right to do) testified that he turned deceased’s shirt over to Trooper Britton at a Charleston hospital where deceased had been taken. Trooper Britton turned the shirt over to Cpl. Casey, who thereafter gave it to Cpl. Langley. Cpl. Langley stated in an affidavit that on or after September 10, 1964, “he examined the shirt delivered to him, both visually and miscroscopically, and that near the left pocket of the said shirt amidst the blood upon the said shirt, he discovered two particles of broken or shattered glass, a small piece of wood and what appeared to be a flattened pellet from a shotgun shell. All of these articles were carefully saved by him and are now in the possession of the Criminal Identification Bureau. There were also about the shirt what appeared visually to be fine particles of what appeared to be wood. This information was incorporated into a written report mailed to Corporal R. L. Casey, a member of the Department of Public Safety at Ripley, West Virginia.” This information was supplied di *44 rectly to the special prosecutor and the Prosecuting Attorney of Jackson County, "West "Virginia, in oral conversation on September 30,1964, and the suggestion made that the shirt be further examined by Lt. it. J. Barber. The affidavit of Lt. Barber is to the effect that he examined the shirt but was not requested to, and “. . . made no specific scientific examination to determine whether there were particles of wood embedded in the shirt, but that he recalls from a merely visual examination of the shirt that what appeared to be fine wood particles were on the shirt about the region where the said G-len Winter apparently had been shot. Affiant further states upon his oath that such examination as he made was made at the request of Corporal Langley and the special prosecutor but that thereafter he was never requested for any report of his findings, nor did he make such report.” (Italics supplied.) Cpl. Langley was subpoenaed as a witness for the state and appeared on the opening-day of the trial which lasted four days. The trial court in its opinion said: “Corporal It. P. Langley was at the trial at least one day as a witness for the State although he did not testify.” (Italics supplied.) Corporal Langley was not called, however, and the attorneys for the state proceeded to prove with regard to any foreign matter upon the shirt exactly the opposite of what they knew to be true. In other words, they knew that the witnesses they offered were totally ignorant of that about which they testified. Briefly, these are the witnesses and what they testified to at the trial. Harl Winters, brother of the deceased, testified that Edison Parsons, the ambulance driver, called him from the Charleston General Hospital and told him what had happened to his brother Glenn. He went directly to the hospital, delivered the deceased’s shirt to Trooper Britton, who delivered it to Cpl. Casey, who in turn delivered it to Cpl. Langley. At that time this witness would not have known whether it was important or unimportant to determine whether there was glass or wood or any other substance on his *45 brother's shirt but he testified that he did examine it “to see if there was any wood or glass in and about the shirt” and there was no wood or glass on the shirt. The ambulance driver and the attending physician testified to the same effect. This question was pointedly asked each of these witnesses, none of whom had reason to closely examine the shirt, while Cpl. Langley and Lt. Barber, who, as the prosecutor and special prosecutor well knew would have testified to the contrary, were not called. I consider that' vicious reversible error and violative of the constitutional rights of the defendant, especially due process. In the same manner the state attempted to qualify two or three witnesses as experts on the pattern of a shot fired from a twelve gauge single barrel shotgun using size seven and one-half shot. None qualified and they were not permitted to testify, however, the expert in the office of the criminal investigation bureau of the department of public safety of this state on guns, the firing of them, the spread of the pattern, etc., is one Cpl. R. F. Langley, who, though present, was not only not called but apparently after one day’s attendance at the trial, was excused by the state, which had subpoenaed him. It may be presumed that if he had been used by the state the pattern of the shot and the spread of it on the deceased’s body would have been consistent with defendant’s statement concerning where she was when she fired the shot, taking into consideration that the small shot passed through the draperies, Venetian shades and the glass and part of the sash of the window. Of particular significance, I believe, is the statement in Cpl. Langley’s affidavit that there was one battered shot upon the shirt which he examined.

Pointing up the atmosphere in which this defendant was tried and which I believe precluded her from receiving a fair trial, the state placed the former wife of the deceased on the stand and asked this question: “Mrs. Winters, did you ever have a conversation with Bonnie June Hamric, the defendant, concerning her sexual relationship with Glen Winters?” The ques *46 tion was objected to and sucb objection was sustained, but the barm bad been done. Tbe prosecution thus informed tbe jury, by fair means or foul, that at some time prior to tbe shooting of Grlenn Winters, be and tbe defendant were engaged in an extramarital sexual relationship; that shortly before be was shot Winters discarded tbe defendant for one Marjorie Roub; and that because of defendant’s jealousy of Marjorie Roub and tbe deceased she shot and killed tbe latter. Tbe following testimony was elicited upon direct examination of Marjorie Roub, and tbe court permitted tbe jury to consider sucb evidence in determining tbe guilt or innocence of tbe defendant:

“Q. When did you first meet Grlenn Winters?

“A. In January of ’64.

Í C

“Q. Would you tell us tbe last time you can recall visiting that trailer before tbe night of September 7,1964?

“A. It was tbe Friday night before.

“Q. Had you ever visited tbe trailer, visited Glenn Winters when you observed Bonnie Ham-ric?

“Objection: Overruled.

“A. Yes.

í i

‘ ‘ Q. Where was she located when you saw her ?

“A. In her window.

“Objection: Mr. Savage. Motion to strike.

“Tbe Court: Tbe motion is refused. (Exception).

‘ ‘ Q. You said in her window, would you tell me what window she was in when you saw her?

“A. It would be tbe back window on tbe left band side.

*47

i i

‘ ‘ Q. Where were you standing at the time you saw her?

“A. We were sitting in the trailer.

‘ ‘ Q. Were you with someone in the trailer ?

Í£A. I was with Glenn. ’ ’

This witness then testified that on five or six occasions while she and the deceased were sitting in the trailer Bonnie June Hamric stared at them. Then comes what, in my opinion, was so viciously prejudicial that a mistrial should have been declared at that point if one -had been sought. This witness was permitted to testify that on the night before he was killed she and Glenn Winters became engaged to be married; that he gave her an engagement ring; and she was allowed, over objection, to hold up her hand and show the engagement ring on her left ring finger.

In State v. Corbin, 117 W. Va. 241 , 186 S. E. 179 , the conviction of a defendant of voluntary manslaughter in the Circuit Court of Harrison County was reversed by this Court primarily because of the admission over objection of evidence very similar to that permitted in this case, the only difference being that there was evidence of a relationship between Cor-bin, a police officer of the town of Nutter Fort, and a Mrs. Longenette, a married woman. Many witnesses testified to seeing this couple in conversation near the house, inside the house, and perhaps on other occasions, although there was nothing in the testimony to indicate that any immoral relationship existed. A disturbance occurred in the Longenette home, the defendant was called as a police officer by Mrs. Long-enette, and he found there one Wilson, who may also have been inferred from the prosecution’s questions to have been intimately acquainted with Mrs. Long-enette. In an affray that took place in the Longenette home with no one present but the defendant and the *48 deceased the defendant hilled Wilson. The state attempted to show by physical facts that the hilling conld not have occurred the way Corbin said it did and the state attempted to show by inference and innuendo that Corbin really hilled Wilson because of his infatuation with Mrs. Longenette, who previously al-legedy had been on intimate terms with Wilson. The Court, in its opinion, said: “The evident purpose of the state was to create from that inference, the further inference that at the time of the shooting, Corbin was actuated to hill Wilson in cold blood because of his resentment and jealousy. The record is entirely devoid of direct testimony of any improper conduct on the part of Mrs. Longenette with either the deceased or Corbin. ... We are of the opinion that this testimony was irrelevant and harmful. . . . The law of evidence does not permit the building of one inference upon another inference.” citing authority, including decisions of this Court.

This condemned strategy of building one inference upon another inference to establish a fact that could not be proved was utilized in several ways in the instant trial. For example, with reference to the telephone having been disconnected in the Hamric home some time prior to the shooting, the defendant was cross-examined at length, over objection, about that matter. That in itself might have been harmless but in his closing argument to the jury the prosecutor was permitted to make this statement with regard to that subject: “You remember the evidence. He talked about the telephone, said it wasn’t important. Certainly it is important. Next door neighbors for seven years, I think she said she lives next door, but hasn’t talked to him [deceased] for a long time, hasn’t a telephone, whenever I said it was a physical object in the room, but she said it wasn’t working, couple with young children, telephone not connected, woman looking out the back window through the Venetian blinds which hang on the bathroom window, not on *49 four occasions, but I think on five or six; Grlenn Winters and Marjorie Roub become engaged on the night of September 6 and the shooting occurred on September 7.” There was no factual evidence in this record that the deceased and the defendant ever engaged in any extramarital sexual affair, that the defendant ever threatened the deceased, that she had been alone in his company at any time prior to the shooting, or that she had even “talked to him for a long time” prior to the shooting. The state knowing that it was unable to establish a motive by admissible evidence, in clear violation of the rule laid down in the Corbin case, by insinuation and innuendo, attempted to do that which is forbidden by the law of this state — establish a fact by building an inference upon an inference, and the cumulative effect of such evidence was clearly reversible error. The majority distinguished this case from the Corbin case upon the ground that such evidence was permitted to go to the jury in the Corbin case whereas in this case “the objections to the questions . . . were sustained and the jury instructed not to consider them.” That is not true with reference to the testimony of Marjorie Roub or the evidence relating to the telephone.

Although both the trial court and this Court found that no motive was necessary upon the facts of this case to sustain a verdict of second degree murder, this Court found that there was evidence from which the jury would have been justified in returning a verdict of murder in the first degree. The latter conclusion was based upon (a) an “ episode’ ’ that occurred shortly after the killing, and (b) certain evidence from which this Court concluded “that she did see whom she was shooting”. First, as to the episode: Audell Williams, mother of the defendant, was asked upon cross-examination if she did not tell Eunice Hardman, who lived across the street from the Hamric house, that “the defendant had shot the deceased and an ambulance was at the scene.” In the majority *50 opinion it is stated that this conversation between Mrs. Williams and Mrs. Hardman took place “after the defendant went to her mother’s house and talked with her mother....” That statement is also incorrect. This record clearly shows that at no time after the deceased was shot and prior to the conversation between Mrs. Williams and Mrs. Hardman was the defendant and her mother in the Williams home. The mother denied knowing anything about who called an ambulance hut did not deny that she knew who had been shot, as did many other persons in the vicinity, before the conversation between these two women took place. The testimony of one of the principal witnesses for the state, Edison Parsons, establishes that fact. He said that when he arrived at the place where the deceased was, four minutes after receiving a telephone call from him saying that he had been shot, “there was three flashlights over around there”, referring to the area in the rear of the Hamric house. He was asked these questions and made these answers: “ Q. Did you ever ascertain who that was with those three flashlights? A. Yes. Q. Who was it? A. Ted Randolph, Battrell, and Alva Hamric.” State’s witness Randolph said: “I was in hack of the house when the ambulance come down.”, and, of course, accompanied by officer Battrell and the husband of the defendant, Alva Hamric. Randolph further testified as follows: “Q. Did you go over to the ambulance? A. I did. Q.. Just when did you do that? A. Just right after the ambulance drove in. Q. You were in back of the Hamric house and you went directly over to where the ambulance was? A. That is right.” He further stated that about five minutes thereafter he went to the Hamric house where other evidence shows Mrs. Williams and the defendant were standing. Mrs. Williams testified that she knew who had been shot because the officers told her. She stated that she saw the ambulance and, contrary to the statement contained in the majority opinion, testified as follows: ‘ ‘ Q. Will you state whether or not the police officers *51 [Randolph., Battrell, and Alva Hamric] went over to the ambulance? A. Yes, they did. Q. Could you see over at the ambulance or did you see them put anyone into the ambulance? A. No. Q. Did you know that it did drive away? A. Yes. Q. Did you later find out or ascertain who was put into the ambulance? A. Yes, I did. Q. From whom did you receive that information? A. From the town police.” Now this is what, in rebuttal, Eunice Hardman said as to the conversation between her and Mrs. Williams: “Q. Following that shotgun shot, do you recall seeing Audell Williams, the mother of Bonnie Hamric? A. Quite sometime, not immediately after that. (Italics supplied.) Q. When you saw her, where was she? A. She was coming back across the street from Bonnie Hamric’s.” Whatever was said between these women the defendant was not present.

As to the proposition that the defendant might have been able to see the deceased the state’s witness, Corporal R. L. Casey, was asked these questions and made these answers: “Q. What about the Venetian blinds? A. They were closed where you could see from the door, you couldn’t see out. Q. If you would stand up close to the blind, that is, the tilted blind, could you then see out? A. Yes, sir.” (Italics supplied.) Upon cross-examination as to that issue the witness was asked these questions and made these answers:

“Q. Could you actually see and identify persons or could you see movement and light?

“A. I could see movement and light; you could see where I was standing with the curtain bach.

‘‘Q. You mean where Mr. Whitehouse is standing?

“A. Mr. Whitehouse is not in this picture.

“Q. This is you?

“A. Yes, sir.

*52 “Q. Then standing right np against the window like so and by glancing down, you can see out?

“A. Yes, sir, you can see out.

“ Q. As you see right straight across, you can’t see out?

“A. You have to look down.

“Q. And you can only do that from a very close distance?

“A. I stated from the door you can’t see out there apparently.

‘ ‘ Q. And in no event could you see out looking directly, that is, straight out horizontally at the Venetian Minds, could you?

“A. I wouldn’t think so, no, sir.”

(Italics supplied.)

Although hereinabove I have discussed the impossibility of the deceased being shot by the defendant if he were standing directly in front of the window of the den and beyond the hedge “in his own yard” in front of the wall of the Yan Winkle house, that was done only because there was an assumption apparently by the trial court and the prosecution that the deceased was at that place when he was shot. The only evidence in this record as to where the deceased was when he was shot other than at the window came from the witness Edison Parsons and was in the form of a quotation from what the deceased was alleged to have told him [Parsons] shortly after his arrival at the place where he found the deceased shot. On redirect examination by the special prosecutor Parsons was asked this question and made this answer: “Q. Where did he show you he was when it happened? A. Corner of the carport there in his yard. ” It is not difficult to compute certain distances from the state’s exhibit showing an aerial view of the area and by the state’s evidence that it is twenty-seven and seven- *53 tenths feet from the Hamric house to the Van Winkle house. It is evident that the distance from the window of the den to the edge of the carport where the deceased said he was shot is at least thirty-four feet and we know from the state’s evidence that the barrel of the gun inside the den was at least three feet from the drapes when the defendant fired the shot that killed the deceased. We know from the testimony of Corporal Casey, quoted above, that it was utterly impossible for the defendant to have seen the deceased behind a hedge “higher than a man’s head in most places” thirty-four feet away from the window with the Venetian blinds pulled together. Furthermore, the carport was not “approximately opposite” the window of the den as stated in the majority opinion. The state’s exhibits show that a point on the wall of the Van Winkle house directly opposite that window is at least twenty-five feet from the corner of the carport.

The contention of the majority that this kind of evidence would have supported a verdict of murder in the first degree is not warranted by the law of this state. If the deceased had been at the corner of the carport as contended, in view of the trajectory of the charge, as heretofore discussed, the shots would have gone harmlessly into the ground many feet in front of the deceased even if the gun had been aimed in that direction, which it was not. There is no evidence of premeditation, no evidence of deliberation, and no evidence of malice in this case, and neither can he presumed by the use of a deadly weapon if the proper precedents of this Court are applied to the facts, that is, “a man’s home is his castle”, rather than the rule of “slight or no provocation”. Suppose the defendant had known “whom she was shooting” and suppose he had been her ex-paramour, would that fact change the law relating to the invasion of a dwelling house by an intruder in the dead of night?

The following statements contained in the majority opinion are either inaccurate or do not state the law *54 applicable to the facts of this case: (1) On page six of the typewritten opinion is this statement: ‘ ‘ The hedge varied in height from around four to five feet or more.” There is no evidence in this record to that effect. Corporal Casey first stated that the hedge was “higher than a man’s head in most places” but upon being recalled said there were some places where it was no higher than his shoulder, he being five feet eleven inches in height. (2) On page thirteen, in referring to the affidavits of police officers Barber and Langley, and their finding of particles of glass and wood upon the deceased’s shirt, is this statement: “These particles were found under microscopic examination in the laboratory, and a notation of their presence was contained in the state police report.” Both of these officers said that such particles could be observed and were observed by them visually and that it was not necessary to use a microscope to see them. (3) On page seventeen the majority states: “Although she saw no one and made no outcry as she had done on the first occasion she grabbed the shotgun which was nearby and fired through the window which was open, making a small hole in the drapes and the bottom sash of the window.” (Italics supplied.) All of the evidence of the state and the exhibits before us show that the window was either closed or raised no more than three or four inches at the time the shot was fired and that the charge pierced the glass and sash of the window as well as the Venetian blind and the drape. One of counsel for the state in his closing argument to the jury, in a desperate attempt to distract the attention of the jurors from the evidence regarding the window, also made these untrue statements with regard to it. “I said, Mr. Parsons, if you extend the line to which he was pointing, where would it go to, he said, toward the rear window out of which Bonnie was pointing the gun. Physical facts. And glass three feet away. Mr. Savage said I should have talked about it in my opening statement. I wasn’t as smart as him; I am no expert with shotguns. You gentlemen know, you take a shotgun, *55 you stand with that muzzle two feet away, seven feet away from the window, you fire a shot through the window, you tell me that glass is only going to go three feet, if you actually believe she does that, no screen on the window, a 12-gauge shotgun, muzzle seven feet away, glass only three feet away, nothing from the other side as it went through the blind. The doctors told you there was no glass on his body, no cuts, no wounds, no arms up, you are full of little holes, could have been only as Dr. O’Dell told you, that under his arm had probably ricocheted. How come the glass was only three feet away, how did the big piece of glass get through into that room, how did it get there, you are shooting from the inside, the piece of glass is too big. If you break the glass out with the barrel, then let the drape fall, then — .” At this point counsel for defendant objected, there was no ruling by the trial court, and counsel for the state continued his argument in a similar vein.

I cannot conclude this opinion without posing a query: The deceased was in a hospital in Charleston, forty miles from Ripley, from the seventh of September until his death on the 20th. After his second “dying declaration” on the 13th, the state’s evidence shows that his condition improved for a few days. Why, during the thirteen days of the deceased’s hospitalization, did no member of the staff of the office of the Prosecuting Attorney of Jackson County, Corporal Casey, Trooper Britton, or any other member of the department of public safety, the Sheriff of Jackson County or one of his deputies, or any other police officer, take a statement from the deceased or even go near his room? The inferences that any reasonable man may draw from that fact are ominous indeed.

It is, also, my understanding that a majority of the Court was of the opinion that bills of exceptions had been timely filed and that this case was considered upon its merits. Of course, a failure of a trial court to sign a bill of exception or a certificate in lieu thereof *56 within the statutory period, or an extension thereof by an order of the court, is fatal. Nevertheless this matter was discussed in the last three pages of the Court’s opinion and this sentence contained therein troubles me somewhat: “However, notwithstanding this situation, we have carefully reviewed all of the assignments of error and do not find any of them constitute reversible error as indicated in this opinion.” The final order, entered March 15, 1965, contained the following-language clearly covering this matter and I quote the last sentence thereof: “And the defendant, having expressed her intention of appealing her conviction and sentence to the Supreme Court of Appeals of W. Ya., and having moved the Court for a stay of execution of her sentence in order to perfect such appeal the Court doth order that a stay of execution be granted unto the defendant for a period of ninety days in order to perfect her appeal and to get her bills of exception signed by the Court, and further, upon motion of the defendant the Court doth further order that the said defendant be admitted to bail in the amount of ten thousand dollars.” That order not only extends the stay of execution of the defendant’s sentence but it also, in my opinion, clearly extends the period for ninety days within which “to get her bills of exception signed by the Court, . . . .”

For the reasons stated herein I would reverse the judgment of the Circuit Court of Jackson County and remand the case to that court for a new trial.