The daily telegram. [volume] (Clarksburg, W. Va.) 1901-1926, 1914-07-20
SI[AB()SES
OF Some Appeal Cases Recent
ly Decided by the State
Supreme Court.


decisions are IS follows:
Rowan VS.. Tracy, executor, ETC., ct
ais; Monroe county, decree reversed,
cause remanded. President Miller.
4. A u. filed by q widow, and as
creditor and deyisea under the will of
her deceased husband. against his
executor, neirs and other devisees,
within less than a year from the date
of the qualification OF the executor
being the first executor, seeking an i
accounting, convention OF! creditors,
and decree for debts claimed by her
and also a distribution Of the estate,
Is premature and demurrable,
?. When the demurrer to. such bill |
has been overruled and the cause
heard on its merits, and dismissed as
presenting NO cause for equitable re-
lief. without a proper saving of plain
tins legal or equitable right accrued
OF to accrue. costs incurred in this
court will be decreed appellant on re-
yersal Of the decree below, sustaining
the demurrer. and remanding the
cause with leave to amend and for
further proceedings.
State VS.. Davis. Raleigh county;
judgment affirmed. President Miller.
4. Other evidence tending in APP
preciahle degree to connect defendant
herewith, 1t was not error to admit /
evidence Of the finding by witness
on defendants premises of an empty
shell with ruffled edges, Of a certain
gauge, used in loading shotguns, the
other evidence tending to prove re-
cent possession by him Of four shells
loaded with shot anu steel balls, and
threats by defendant to kill one Reed,
who was In company with deceased
when killed. such shot and bal being
like those found in the body Of de-
ceased after the homicide.
The rule of best and secondary
evidence applicable to instruments Of
writing, is not generally, If ever. ap-
plicable to instruments employed. or
to the clothing or other articles con-
nected with homicide, and the trial
court committed no reversible error
in permitting the witness who found
the empty shell on deceased's prem
Uses to describe the shell and its con-
!, dition when found, without producing
the shell found. and delivered by him
to the sheriff.
8. Evidence Of defendants threat
against the property of another in
connection with threat made against
the one at whom the fatal. shot may
have been aimed does not constitute
reversible error.
4. The propounding of questions
by the prosecuting attorney, on cross
examination, of a prisoner on trial
for homicide, suggestive Of other
crimes committed by him, objections
to which are promptly sustained by
the trial court, and to which no ans
wers are required or given, and no
comments Of counsel allowed thereon,
does not constitute reversible error.
Distinguishing State VS.. Sheppard, As
| w. Va. 598.
s.. An instruction to the Jury
based on the theory Of homicide by
lying In wait, with a deadly weapon,
and telling the jury that in such cases
1t Is not necessary to show that the
malice existing in the heart Of the
prisoner at the time Of the killing
was directed against the deceased, is
not, when properly construed, an as
sumption of the fact Of malice, so as
to constitute reversible error.
g. Nor will such an instruction
constitute reversible error, because 1t
concludes by telling the jury II they
find defendant guilty Of the homicide,
by lying in wait, with deadly weap-
on, they must find the prisoner guilty
of murder in the first degree. Such
instruction properly construed means
simply that homicide so committed
constitutes murder In the first degree,
and that 1t is the duty Of the jury on
their oaths to SO find, but it does not
invade the province OF jury nor de-
prive them Of their right or duty I'M
der the statue to fix by their verdict
the degree Of the crime.
| z. Instructions numbered a and S.
given at the instance Of the state, be-
ing the same as instructions 3 and S.
approved in State vs.. Abbott, "a w.
Va. All, when read and considered in
connection with all the other instruc-
tions to the jury, do not violate the
rule Of our decisions against pro-
pounding abstract propositions to the
jury without any reference to the evil
dence.
s. An oral direction by the court
to the jury, after returning verdict
OF guilty as charged in the Indictment
to return to their room and find the
degree Of the crime, is not violative o.
the statute, nor does such direction of
the court constitute reversible error.