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Thread: One Person Dead in Shooting Near Walmart - Man charged with Murder for Self Defense?

  1. #1
    Regular Member rscottie's Avatar
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    One Person Dead in Shooting Near Walmart - Man charged with Murder for Self Defense?

    http://www.wsaz.com/news/headlines/B...128205923.html

    "LOGAN, W.Va. (WSAZ) – One man is dead, and another's headed to jail after a shooting in a parking lot Monday afternoon.

    Logan Police say Jesus Canul, 26, of Logan, was approached by David Abbott in the parking lot of the Walmart at Fountain Place. Police say Abbott had a sharp object and attempted to rob Canul in front of the store.

    During the confrontation, Canul pulled out a gun and shot Abbott in the head.

    Abbott, 37, of Chapmanville, was taken the hospital where he later died.

    Canul is being charged with murder. He did have a legal permit to carry his gun."



    There must be more to this story, how does the victim get charged with murder?
    Last edited by rscottie; 08-22-2011 at 09:50 PM.

  2. #2
    Campaign Veteran skidmark's Avatar
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    Without bothering to read the linked story, the answer is easy.

    The guy that was holding the gun and not the pointy stick shot the guy holding the pointy stick on purpose and the guy died. Now the holding the gun gets to find out if a grand jury will uphold the charge the cops have brought, and if that happens whether or not a jury will believe that his purposely shooting the guy with the pointy stick was excusable.

    There's a whole lot of technical details that may or may not come into play, but the bottom line is that if you shoot someone on purpose and they die as a result you have committed some form of homicide. The cops usually start at [unspecified degree of] murder and let the prosecutor figure out the technical details.

    On order to claim the excusable homicide defense you have to start out by pleading guilty to the murder charge and then convince the jury you qualify for the exemption. I'm sure attorneys out there (User?) will fill in all the specifications I'm glossing over.

    stay safe.
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  3. #3
    Campaign Veteran skidmark's Avatar
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    Just read the story.

    The complaint states Abbott, 37, of Chapmanville, "fled toward Walmart at which time the defendant shot the victim."
    Oops! No longer an imminent threat of death or serious bodily injury. Sounds more like murder than excusable homicide. Please disregard everything I bothered to go over above.

    If you are not aware of my rants on bloodlust, here's a situation I would rant about. Seems the cops beat me to it.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

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    The complaint states Abbott, 37, of Chapmanville, "fled toward Walmart at which time the defendant shot the victim."
    We don't know the truth of this statement from the complaint. However if it is true, it could explain the murder charge. Does State law in WV allow you to shoot a fleeing felon and claim self defense? I doubt it. Some other justification? I don't know.

  5. #5
    Campaign Veteran Schlitz's Avatar
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    The complaint states Abbott, 37, of Chapmanville, "fled toward Walmart at which time the defendant shot the victim."
    Only in America... The man who held someone at "sharp object" point is the victim. Justice has been served...sike.
    “The claim and exercise of a constitutional right cannot be converted into a crime.”
    [Miller vs. U.S., 230 F. Supp. 486, 489 (1956)]
    “There can be no sanction or penalty imposed upon one because of his exercise of constitutional rights.”
    [Sherar vs. Cullen, 481 F2d. 946 (1973)]

  6. #6
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    Quote Originally Posted by Schlitz View Post
    Only in America... The man who held someone at "sharp object" point is the victim. Justice has been served...sike.
    If the shooting is illegal, the person being shot, regardless of any previous crimes he has committed, is the victim.

    If the facts are as stated in the quoted sentence and if it is illegal to shoot a fleeing felon in WV, then the shot fleeing felon is the victim of a crime. If the facts are as stated in the story, then the shooter is also a victim, just the victim of a separate crime.

    Being the perpetrator of one crime does not preclude being the victim of another.

    In every country.

  7. #7
    Regular Member MKEgal's Avatar
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    Abbott "wrapped him around his neck and said, 'Give me all your money, or give me your wallet or I'm going to cut your throat.' "
    [witness] says Abbott repeated that two or three times.
    He finally got the wallet and turned to go. That's when his victim pulled a gun out.
    [witness] says Canul "cocked (the gun) back and pointed at that guy's head. And, he got three steps, and that boy shot him."
    So at the time of the attack, no problem - threat to his life.
    But the attacker was leaving & he shot him in the head? Not looking good for Canul.

    IDK if this is really how police & DAs think, but I've been told that a head shot shows deliberation, intent to kill, not just trying to stop an attack. It takes more aim, and is practically sure to kill, rather than the torso shot that is easier to make & can stop w/o killing.

    That being said, if I've shot someone several times in the torso & he's still coming at me & he's close enough to hit me, I can shoot his head & stop him right there & not risk any (more) damage to me.
    But that's quite a different scenario than the posted news story.

  8. #8
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    Here is another version of events. This appears to be a case of arrest first, ask questions later. If I was not presently incapacitated, I would not be a spectator to this case.

    From a legal standpoint, let me add that one of the few "small things" that West Virginia does not have in its Castle doctrine & self-defense laws--and which Florida & many other states that have passed comprehensive self-defense reform laws since 2005 have--is a specific requirement that were a colorable claim of self-defense exists, the police must investigate and find probable cause to believe the use of force was unlawful rather than arrest first and investigate & ask questions later. See Fla. Stat. § 776.032(2); see also, e.g., Ky. Rev. Stat. § 503.085(2) (same); S.C. Code § 16-11-450(B) (same). Florida and many its followers also have an "immunity from prosecution" which, unlike the defense of self-defense at common law, allows a defendant to raise the issue of self-defense at a very early stage in the proceedings (before trial) and have the charges dismissed if there is a preponderance of evidence supporting self-defense; of course, if the case is in serious dispute, the case goes to trial, where the state must prove beyond a reasonable doubt the defendant did not act in self-defense. See Fla. Stat. § 776.032(1); see also, e.g., Ga. Code § 16-3-24.2 (same); Ky. Rev. Stat. § 503.085(1) (same); S.C. Code § 16-11-450(A) (same); State v. Duncan, 392 S.C. 404, 709 S.E.2d 662 (2011) (interpreting statutory immunity from criminal prosecution in cases of self-defense). In West Virginia, self-defense is merely a "defense" that a defendant must wait until trial to exercise; no matter how strong the evidence may indicate self-defense, the police have no duty to investigate & rule out self-defense before making an arrest and, if a case is prosecuted, a defendant has no effective pre-trial remedy to assert & test the merits of a self-defense claim.

    With all that said, if the evidence comes anywhere close to the reporting by the Charleston Gazette (not exactly the house organ of the RKBA movement in this state), expect Mr. Canul to get a personal recognizance bond and a quick dismissal of the charges at or before the preliminary hearing (which must be held within 10 days if the defendant is incarcerated or 20 days if the defendant is out on bond). I also expect no shortage of my fellow lawyers who would like to (1) defend him and (2) if the dirtbag left any assets behind, file a civil suit for assault, battery, infliction of emotional distress, recovery of the cost of the bullet (yes, that should be included in any civil suit filed by a crime victim against a criminal (or in this case, his estate) the person was forced to shoot), and probably some other legal claims that I could add with a little more deliberation.
    James M. "Jim" Mullins, Jr., Esq.
    Admitted to practice in West Virginia and Florida.

    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
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  9. #9
    Campaign Veteran Schlitz's Avatar
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    Quote Originally Posted by eye95 View Post
    If the shooting is illegal, the person being shot, regardless of any previous crimes he has committed, is the victim.

    If the facts are as stated in the quoted sentence and if it is illegal to shoot a fleeing felon in WV, then the shot fleeing felon is the victim of a crime. If the facts are as stated in the story, then the shooter is also a victim, just the victim of a separate crime.

    Being the perpetrator of one crime does not preclude being the victim of another.

    In every country.
    I know how the legal system works eye. It is just my personal opinion that once you engage in life threatening activity you should lose any protection of the law.

    says Abbott "wrapped him around his neck and said, 'Give me all your money, or give me your wallet or I'm going to cut your throat.' "
    This is the guy the law would have rather let live and get away to only do it to the next person. Who knows, maybe the next time it would have happened he would have killed someone. Thanks to Jesus Canul, the next guy doesn't have to worry about this specific threat being on the streets. And now Jesus Canul will go to jail for removing him for society.
    Last edited by Schlitz; 08-23-2011 at 08:41 AM.
    “The claim and exercise of a constitutional right cannot be converted into a crime.”
    [Miller vs. U.S., 230 F. Supp. 486, 489 (1956)]
    “There can be no sanction or penalty imposed upon one because of his exercise of constitutional rights.”
    [Sherar vs. Cullen, 481 F2d. 946 (1973)]

  10. #10
    Michigan Moderator DrTodd's Avatar
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    West Virginia Man faces murder charges after killing alleged robber

    A legal carrier facing murder charges... this is insane.

    http://www.wvgazette.com/News/201108221723


    "Canul now faces murder charges, he said. He [the police Chief] said Canul did have a legal permit to carry the firearm."
    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer – I am not a lawyer! Please do not consider anything you read from me to be legal advice.

  11. #11
    Regular Member T Mack's Avatar
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    Cool All

    All charges will be dropped if the story is true. I HOPE
    "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." - Article 1, Section 25

  12. #12
    Regular Member PDinDetroit's Avatar
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    Does West Virginia has a Stand Your Ground law aka Castle Doctrine?
    Yes, West Virginia is a Castle Doctrine state and has a Stand Your Ground Law which is below.


    §55-7-22 of the Code of West Virginia

    (a) A lawful occupant within a home or other place of residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the home or residence or to terminate the intruder’s or attacker’s unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.
    (b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder or attacker in the circumstances described in subsection (a) of this section.
    (c) A person not engaged in unlawful activity who is attacked in any place he or she has a legal right to be outside of his or her home or residence may use reasonable and proportionate force against an intruder or attacker: Provided, That such person may use deadly force against an intruder or attacker in a place that is not his or her residence without a duty to retreat if the person reasonably believes that he or she or another is in imminent danger of death or serious bodily harm from which he or she or another can only be saved by the use of deadly force against the intruder or attacker.
    (d) The justified use of reasonable and proportionate force under this section shall constitute a full and complete defense to any civil action brought by an intruder or attacker against a person using such force.

    (e) The full and complete civil defense created by the provisions of this section is not available to a person who: (1) Is attempting to commit, committing or escaping from the commission of a felony; (2) Initially provokes the use of force against himself, herself or another with the intent to use such force as an excuse to inflict bodily harm upon the assailant; or (3) Otherwise initially provokes the use of force against himself, herself or another, unless he or she withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
    (f) The provisions of this section do not apply to the creation of a hazardous or dangerous condition on or in any real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct
    http://www.usacarry.com/west_virgini...formation.html

  13. #13
    Regular Member rscottie's Avatar
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    More on the issue:
    http://booneexaminer.com/logan-walma...er-p1945-1.htm

    If this man pulled his gun and twisted around shooting the guy as soon as he felt the knife (sharp object, reported somewhere as scissors) leave his throat, he may very well shot the robber as the robber was turning away.

    It is sad that they would even consider charges against the victim when he had just experienced a knife to his throat and a robber putting his hand in his pocket to take his wallet. He undoubtedly was in fear for his life. No one should second guess what was going through this mans mind considering the effects of adrenaline and everything else. He was not facing his assailant when he drew his gun. For all he knew the guy was going to stick him in the back or worse. So, he did what anyone would do, turn and fire on his assailant.

    That should not be murder.

    This may all hinge on how far from the victim the robber was when he was shot.

    Hopefully the man was smart enough not to speak to police and waited for his lawyer.

    The robber is not getting much sympathy on the many comment pages and message boards so getting a jury of 12 to convict him may be difficult.
    Last edited by rscottie; 08-23-2011 at 10:54 AM. Reason: syntax

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    Regular Member PDinDetroit's Avatar
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    More info...

    Looks like the perp may have been running away...

    http://sundaygazettemail.com/News/201108230503

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    A crazed man with a knife just stuck it to my throat and robbed me. He is now running INTO a large store(where there are LOTS of people). Should I just let him go in there and possibly start hacking people up? Call the cops and hope they show up in time?

  16. #16
    Regular Member DanM's Avatar
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    Quote Originally Posted by PDinDetroit
    Looks like the perp may have been running away...
    . . . or toward other potential victims?

    Lethal force is justified in WV if "the person reasonably believes that he or she or another is in imminent danger of death or serious bodily harm from which he or she or another can only be saved by the use of deadly force against the intruder or attacker."

    I hope the good guy gets a good lawyer and justice is served.
    Last edited by DanM; 08-23-2011 at 11:59 AM.
    "The principle of self-defense, even involving weapons and bloodshed, has never been condemned, even by Gandhi . . ."--Dr. Martin Luther King Jr

    “He who cannot protect himself or his nearest and dearest or their honor by non-violently facing death, may and ought to do so by violently dealing with the oppressor. He who can do neither of the two is a burden.”--M. K. Gandhi

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    Quote Originally Posted by scot623 View Post
    A crazed man with a knife just stuck it to my throat and robbed me. He is now running INTO a large store(where there are LOTS of people). Should I just let him go in there and possibly start hacking people up? Call the cops and hope they show up in time?
    +1. He indicated he was a threat, he was capable of carrying it out, and he was acting aggressively towards people that had the right to be where they were, and weren't breaking the law.

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    IDK if this is really how police & DAs think, but I've been told that a head shot shows deliberation, intent to kill, not just trying to stop an attack. It takes more aim, and is practically sure to kill, rather than the torso shot that is easier to make & can stop w/o killing.
    I've been doing some IDPA shooting at the local range. For those not familiar with IDPA targets, there is a "zero" range in the torso, with the head is also considered a "zero".

    In two cases I missed the torso "Zero", unintentionally hitting the head instead. Still counted as a "Zero" for scoring purposes, but the point is that in the "heat" of the moment a head shot can occur, especially at close ranges.

    I suppose this fallacy of "head shot shows deliberation" is similar to using JHP in your Handgun, showing deliberate purpose for killing vs simply eliminating the threat...Which of course is total crap....
    Last edited by xd shooter; 08-23-2011 at 12:02 PM.

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    Quote Originally Posted by scot623 View Post
    A crazed man with a knife just stuck it to my throat and robbed me. He is now running INTO a large store(where there are LOTS of people). Should I just let him go in there and possibly start hacking people up? Call the cops and hope they show up in time?
    The threat to you is over, no authority to shoot you are not a cop, at this point get on the phone 911/holster your weapon, be a good witness, follow him into the store(some will say dont-911 dispatch may say dont) but he has a knife-what if he goes after others, you are not leagally obligated to help-morally thats not for me to say, everybody has their own ideas/demons to deal with.

    If in fact he did shoot the guy in the BACK of his head while he was running away, I'm sorry but I believe Jose was in the wrong the threat to him was over. I do hope he gets a GOOD lawyer. But I'm not going to lose any sleep/almost happy that a badguy is gone.
    Last edited by Rasher; 08-23-2011 at 12:08 PM.

  20. #20
    Regular Member WalkingWolf's Avatar
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    A LEO can shoot a fleeing felon if that felon is a risk to the public. At one time a LEO could shoot any fleeing felon but the courts shot that down. A citizen after having life threatened with a knife should have the same right/responsibility to stop a clear risk to public safety. Unfortunately the rights of the criminal are more important than the right of the public.
    Last edited by WalkingWolf; 08-23-2011 at 12:15 PM.

  21. #21
    Regular Member DocWalker's Avatar
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    I have jury duty the next two months in my county, I would vote not guilty. The reason an (I could care less what the law said) is that if you die while commiting a felony then that is fair. I don't care what they say about it, I'm tired of criminals getting more rights and protection than the honest citizen. I also don't care if it is when he puts the knife to my throat or when he turns to leave, if he will do it to me he will do it to another person. If you threaten me and try to leave with my wallet with all my information you will not get far. I will take my chances with a jury in my town/state. I know I will get ripped for my stance but I refuse to be a victim, I rufuse to let criminals be in charge.

  22. #22
    Regular Member DocWalker's Avatar
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    Quote Originally Posted by xd shooter View Post
    I've been doing some IDPA shooting at the local range. For those not familiar with IDPA targets, there is a "zero" range in the torso, with the head is also considered a "zero".

    In two cases I missed the torso "Zero", unintentionally hitting the head instead. Still counted as a "Zero" for scoring purposes, but the point is that in the "heat" of the moment a head shot can occur, especially at close ranges.

    I suppose this fallacy of "head shot shows deliberation" is similar to using JHP in your Handgun, showing deliberate purpose for killing vs simply eliminating the threat...Which of course is total crap....
    That is funny since the military and LEO are trained to do a three shot burst of two to the chest and one to the head...repeat. I have to shot every year to qualify and it is two to the chest and one to the head...over and over to get you conditioned. I found myself doing it at the range also when just shooting for fun.

  23. #23
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    There is no such limit to only defending yourself.

  24. #24
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    Quote Originally Posted by Rasher View Post
    be a good witness, follow him into the store(some will say dont-911 dispatch may say dont) but he has a knife-what if he goes after others, you are not leagally obligated to help-morally thats not for me to say, everybody has their own ideas/demons to deal with.
    I'm not legally obligated, but I am legally authorized to protect other victims...as Dan pointed out. I'm not a cop, but I wouldn't stand by on the phone with 911, describing a slaughter in progress with my firearm holstered on my hip.

  25. #25
    Regular Member DocWalker's Avatar
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    I guess I will also let you know why I feel this way.

    In 1994 there was an incident I was involved with were a gunman walked into a doctors office and the first person he saw was the patient. He pointed the gun at the patient but didn't shoot. He then pointed the gun at the doctor and shot him, he then turned and went to the next office and shot the doctor inside that office killing them both. He ended up killing multiple people and injuring of 20 before the cops killed him due to the response time. If the first person would have been armed he/she might have had a chance to prevent further killing of innocent life. This included a pregnant lady, and an 8 year old. I'm not saying it would have been different in this case but I lost a couple of close friends that day. Say what you want but the argument to protect the criminal from harm so he/she can commit more falls on deaf ears. I have seen to much I guess to have a bleeding heart for felons that would do harm to others.

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