124 Va. 833 | Va. | 1919
delivered the opinion of the court.
The only evidence offered to sustain’ the warrant showed that Byrd had made derogatory and insulting remarks about Mrs. Connelly to her husband, but not in her presence. Whether any person, except Byrd and Connelly, was present, does not appear.
This evidence was objected to on the ground that it did not tend to prove the offense charged in the warrant, which, as contended by the defendant, was the use of insulting words to Mrs. Connelly in the presence of her husband. The action of the court in overruling this objection is the subject of the first assignment of error.
The court was right. The only objection made to the form of the warrant was met by the amendment already indicated. As thus amended, while it was imperfectly
It was'further urged, upon the hearing in this court, that the evidence was inadmissible, even if it did tend to prove the charge in the warrant as amended, because no third person was shown to have been present. This argument is disposed of by the construction which we have placed upon the statute.
Counsel for defendant concedes, and it is clear upon reason and authority, that the evidence was not admissible in bar of the prosecution (Dyer v. State, supra; 8 R. C. L., p. 286, sec. 307); but the contention here is that the defendant ought to have been allowed to prove the truth of the defamatory words in mitigation of the punishment. For this’ latter purpose, the evidence was proper, and should have been admitted. The objection seems to have been general in its form, and as the evidence was admissible for some, even though not for ¡all, purposes the objection ought to have been overruled. Washington R. Co. v. Trimyer. 110 Va. 556, 860, 67 S. E. 531.
The only remaining assignments of error requiring any particular discússion may be dealt with jointly. They relate to: (1) the refusal of the court to instruct the jury that the Commonwealth had to prove that the alleged offense was committed within the local jurisdiction of the court, and (2) the denial of the motion for a new trial because of a total failure of proof on that point.
The failure clearly to prove venue is usually due to inadvertence, flowing naturally from the familiarity of court, counsel, witnesses and jurors with the locality of the crime; and appellate courts will generally and properly lay hold of and accept as sufficient any evidence in the case, direct or otherwise, from which the fact may be reasonably inferred. In this case, however, there is nothing in the evidence before us upon which to base eren a surmise as to where the insulting words were spoken. Nor is there any reason to regard the question as lacking in substantial merit. The record discloses that the defendant raised the
But the defendant’s seventh bill of exceptions manifestly contains the whole of the evidence, and also shows that the one and only instruction given did not relate to the venue. The court certifies therein that “the following evidence was introduced by the Commonwealth to maintain the issue,” and then sets out evidence which, when taken in the light of the other bills, could not have reasonably been intended by the court as anything but a certificate of all the evidence in the case. This is followed, in the same bill, by the statement that “the court instructed the jury as follows,” setting out a single instruction which plainly purported to apply to the evidence as a whole. This bill of exceptions, the final one in the record, is purposeless and meaningless except in one embracing all the evidence and all the instructions.
In principle, we have here the same situation and must apply the same rule as this court applied in Manchester Loan Association v. Porter, 106 Va. 528, 533, 56 S. E. 337, 338, where Judge Buchanan said: “It is quite true, as argued, that the bill should state, or it should appear by
It follows that there was plain and vital error in denying the motion for a new trial.
There were two other assignments of error, but they were not sound, resting upon the fallacious theory that proof of insulting words spoken to Connelly about his wife, but not in her presence, or in the presence of a third party, did not constitute any offense either .as charged in the warrant or as chargeable under the statute. The effect of the warrant and of the statute in this regard has already been sufficiently discussed.
For the errors above pointed out, the judgment will be reversed and the cause remanded for a new trial to be had not in conflict with the views herein expressed.
Reversed.