138 Va. 807 | Va. | 1924
delivered the opinion of the court.
Washington Brown, on the night of June 13, 1922, shot and fatally wounded. one Wesley Stith, in the town of Drewryville, Southampton county. On the 17th day of July of the same year, there was found in the circuit court an indictment against the accused, charging him with the wilful, deliberate and premeditated killing of Stith. On this indictment the accused
The assignments of error are three in number:
(1) “The court erred in overruling the motion to set aside the verdict as being contrary to the law and the evidence.
(2) “The court erred in its instructions to the jury.
(3) “There is a variance between the indictment and the proof as to the name of the person killed.”
The material testimony as to the homicide, relied upon by the Commonwealth to sustain the verdict of the jury, is as follows:
Lewis Seaborn, an eye-witness, testified: “In June, 1922, I was working as one of the hands on the section for the Southern Railway Company, together with Wesley Stith, and he and I roomed together in a house fronting on the railroad in Drewryville. The evening of June 13th Wesley Stith and I met Washington Brown and Robert Persons in Drewryville, and arranged with them to have a crap game at our shanty that night. We had often played before and all of us were friends. I went on ahead of the others and Wesley Stith, Washington Brown and Robert Persons came on together a little later. We engaged in a game of-crap. We had a Coca Cola bottle with some kerosene oil in it and a rag, which we lighted and used for a lamp. Washington Brown, the accused, got broke and stopped playing. I also stopped playing and left Wesley Stith and Robert Persons continuing playing. After a while Robert Persons got broke and he asked Washington Brown if he would go to his (Persons’) house a few hundred yards away and get Persons’ pistol for the purpose of pawning it to get money upon which to continue the game, and Washington Brown
The only evidence introduced by the accused as to the main transaction was that of Brown himself, who testified as follows:
“For about six years I worked for the Camp Manufacturing Company at Arringdale until they shut down their mill, and then I went to work for Mir. H. H. Gay. The night that Wesley Stith was killed, he asked Rob*811 ert Persons and me to go with him and Lewis Seaborn, who stayed in the railroad section house with him, to shoot crap. Lewis Seaborn went on ahead and Robert Persons, Wesley Stith and I went on together after-wards. We commenced the game and I did not have but a dollar and I lost that and got out of the game, but set there, the others playing. Presently Lewis Seaborn had won most all the money and he stopped and set on the bed, leaving Wesley Stith and Robert Persons still playing and Robert Persons got broke. He told Lewis that he had a pistol that he would put in pawn if he would lend him $2.00, and Lewis agreed to do this and he asked me to go and get the pistol, and he would give me a dollar. I went and got the pistol, gave it to Robert and he deposited it with Lewis Seaborn and Lewis gave him $2.00, and Robert gave me one of them, and then Robert and Wesley and I continued the game. We played for some time when Wesley grabbed the money which I won. I told him to give me the money and he said I will give you a bottle ñt. He had the money in his right hand and he grabbed the Coca Cola bottle which we was using for a lamp and he struck me over the head, knocking me down on my knees. He split my head open, leaving a scar there now (which scar the accused exhibited to the jury). I was making to the door and just as I got to the door he was advancing on me from the inside of the room when Robert Persons handed me the pistol and told me to shoot. I shot first through the window and not at him, thinking that I might make him stop. He did stop for the second when I shot, but after stopping he continued to come toward me. The door was shut a part of the way, and I thought that he put his hand in his hip pocket, and I thought that he was going to kill me. The light went out when he struck*812 me with the bottle. I was afraid to turn around, afraid he would shoot me. I knew he had been carrying a pistol, and I shot him to keep him from killing me. He was bigger than I was. If I had not had the pistol I would have fought him the best I could as I was doing, but he was bigger than I was and he had already knocked me down with the bottle and I expected him to beat me or kill me, and I shot him to protect myself. When I shot him he kept on coming and like to fell on my feet. I got out the door and Robert told me to give him the pistol, which I did and then went to my mother’s down in North Carolina. My mother lives at Macon, and I went to her house. On the way I saw Willie Pearson and I told him that I had shot Wesley Stith and I had shot him with a real pistol. I wont down to my mother’s in North Carolina because I knew that whether I was guilty or innocent that I would be arrested and put in jail, and I would not have a chance to employ counsel nor to arrange for my defense. I, therefore, went to my mother’s in North Carolina, and soon after I got there I called Mr. Gay, my employer, up over the ’phone and told him where I was and I wanted to come back and give myself up, and told him I would do so if he would employ a lawyer to defend me. I have a wife and one little child.”
“Malice is presumed from the fact of killing unaccompanied with circumstances of extenuation, and the burden of disproving malice is thrown upon the accused.” (Italics supplied.)
This principle of law has repeatedly been upheld by this eourt. Muscoe’s Case, 86 Va. 451, 10 S. E. 534; Gray’s Case, 92 Va. 774, 22 S. E. 858; Hall’s Case, 89
“Where a homicide is committed under such circumstances, without any previous grudge, even if the killing be not done in self-defense, it has also been long settled that the test of whether the killing is from the sudden heat of passion aforesaid is found in the nature and degree of the provocation and the manner in which it is resented.” Read’s Case, supra.
In the case before us there is no evidence of a previous grudge. On the contrary, the only evidence introduced by the Commonwealth throwing any light upon the relations of the accused and the deceased to each other was that of Lewis Seaborn, who testified: “We had often played before and all of us were friends.” (Italics supplied.) “I went to sleep leaving them playing in a friendly manner.”
This being true, there was no evidence or presumption of malice upon which to base the instruction. There being no foundation upon which the instruction could be placed, it necessarily follows there was no evidence before the jury to support their verdict of murder in the second degree.
In the case of State v. Reese, 27 W. Va. 375, 380, an indictment charged the accused with the larceny of goods, the property of Robert Buster, while the proof was that the owner of the goods was James Robinson Buster, who was sometimes called Rob, Robinson and Bob Buster. It was contended that a new trial should be granted for variance.--between the allegation and the proof, but the court held this was not a material variance.
The point raised is purely technical and it is to meet just such a point as the one under consideration that the revisors wrote into the Code of 1919, section 4878, declaring that “if, on the trial of any case, there shall appear to be any variance between the allegations of the indictment and the evidence offered in proof thereof, it shall be competent for the court before which the trial is had to amend the said indictment, according
In any event, this question is not likely to arise in a future trial of this case.
Having reached the conclusion that the trial court erred in giving to the jury the instruction complained of, the case must be reversed and the same remanded to the circuit court for a new trial.
Reversed.