116 Va. 1031 | Va. | 1914
delivered the opinion of the court.
Harvey D. Looney, on the night of June 16, 1912, shot and fatally wounded one Oscar M. Martin, in the town of New Castle, Craig county, and by flight temporarily escaped arrest for his crime. On the following day a justice of the peace of Craig county, upon complaint made to him, issued his warrant for the arrest of B. W. Buck, charging. that Buck had “received, harbored, maintained and concealed the said Harvey D. Looney, and that he, the said B. W. Buck, has assisted the said Harvey D. Looney in escaping and evading arrest for the said felony committed by him. ’ ’ Buck was arrested and brought before the justice on the date of the warrant, but the case was continued from time to time until August 30, 1912, when a trial was had and judgment rendered against the accused that he bé confined in the jail of Craig county for a term of six months and pay to the Commonwealth of Virginia a fine of $300, from which judgment Buck appealed to the Circuit Court of Craig county, and upon a trial of the cause before a jury in the circuit court, on November 14, 1912, Buck was found guilty and his punishment ascertained to be a fine of $450 and confinement in the county jail for ten months, upon which verdict the circuit court entered judgment, and to which judgment a writ of error was awarded to the defendant by this court.
The only assignment of error requiring consideration relates to the action of the trial court in overruling plaintiff in error’s motion to set aside the verdict of the jury as contrary to the law and the evidence, and in entering judgment thereon.
The only evidence relating to the alleged connection of plaintiff in error with the temporary escape of Looney after the latter had, about eleven o’clock on the night of
It appears that Harvey Looney was in the town of New Castle, drunk and very disorderly, on the afternoon and evening that he shot Martin, who made an effort to ar-. rest him; that plaintiff in error resided at New Castle and had been acquainted with Looney for about four years, and had seen him at New Castle several times in the afternoon preceding the night of the shooting. During that afternoon, on more than one occasion, Looney had cursed and abused plaintiff in error very violently, as he had done others in his drunken frenzy. That evening plaintiff in error, as was his custom, went to Craig City, only a few minutes walk from New Castle, to look after some horses which he kept there, and the substance of the statements made by him upon his trial in the circuit court is as follows: He turned out three of his horses in a little field to graze, and left two in the stable. A little later, because of a threatening storm, he tried to catch one of the horses, a sick one, which he had turned out, but failed. While so engaged, and when near a Mr. Caldwell’s house he heard five shots fired. Failing to catch the horse and a storm coming up, he started back to New Castle. When “between the bridges” he met
At an interview sought by plaintiff in error with Wiley Martin, G. W. Layman and several others the next morning after the shooting, he undertook to relate to these men just what had occurred between him and Harvey Looney the night before, and while Wiley Martin and Layman, when testifying for the prosecution, make it appear that the statement then made by plaintiff in error did not accord altogether with his testimony given in court, there is not any material difference in the two statements. On the contrary, the statement made by plaintiff in error at that interview, as testified to by Wiley Martin and Layman, corroborates rather than, discredits the statements made by plaintiff in error in court. Not' only so, but both the witnesses say that they
There is no evidence whatever in the record tending to prove a motive on the part of plaintiff in error in committing the offense with which he is charged, and it is to be borne in mind that the voluntary statements he made to others in Judge Jones’ office and testified to at his trial constitute the only proof in the case as to what occurred between the time of his meeting with Looney “between the bridges,” after the shooting of Oscar Martin, and the time at which Looney rode away on his father’s horse from the Looney home, and as to which statements there is no contradiction whatever.
Nor is there the slightest intimation in the record that plaintiff in error entertained any unkind feeling toward Oscar Martin, deceased, or that he had any reason to even feel kindly toward Looney who, as it affirmatively appears in the record, had violently cursed and abused him but a few hours before the shooting of Martin, and without provocation.
• Though the case has to be considered as upon a demurrer to the evidence by plaintiff in error, he is not
In Wren v. Com’th. 26 Gratt. (67 Va.) 952, the question as to what proof is necessary to convict one charged with the offense of which plaintiff in error here stands convicted in the circuit court is very fully discussed, and the court said: “The true test whether one is accessory after the fact is to consider whether what he did was done hy way of personal help to his principal with the view to enabling his principal to elude punishment; the kind of help being unimportant. ’ ’
In the case here, the evidence, as we view it, fails utterly to prove any act on the part of plaintiff in error in the way of help to Looney with a view of enabling him to elude punishment. The prosecution itself proved that early next morning he reported the escape of Looney, when and by what means he had left the vicinity, and it ■is riot proven that plaintiff in error did anything whatever by way of personal help to Looney with the view to enabling him to elude punishment. All that he' did according to the proof, was to go with him, under duress, from a point “between the bridges” to the Looney house, where the Looneys provided all the means necessary for him to make a temporary escape, without any sort of assistance from plaintiff in error. Had the latter not reported the escape of Looney to the authorities, his failure would not have constituted the crime charged against him, or any crime. Wren v. Com’th, supra.
We are of opinion that the judgment of the circuit court complained of should be reversed, the verdict of the jury set aside, and the cause remanded for a new trial, if the circuit court and prosecuting attorney consider that a better case against plaintiff in error can be made out.
Beversed.